Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 30 (2004)

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Opinion of the Court

Brief for Petitioner 34, but not whether that BACT determination "was made on reasonable grounds properly supported on the record," 63 Fed. Reg., at 13797. Congress, however, vested EPA with explicit and sweeping authority to enforce CAA "requirements" relating to the construction and modification of sources under the PSD program, including BACT. We fail to see why Congress, having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, would then implicitly preclude the Agency from verifying substantive compliance with the BACT provisions and, instead, limit EPA's superintendence to the insubstantial question whether the state permitting authority had uttered the key words "BACT."

We emphasize, however, that EPA's rendition of the Act's less than crystalline text leaves the "permitting authority" considerable leeway. The Agency acknowledges "the need to accord appropriate deference" to States' BACT designations, Brief for Respondents 43, and disclaims any intention to " 'second guess' state decisions," 63 Fed. Reg., at 13797. Only when a state agency's BACT determination is "not based on a reasoned analysis," App. 274, may EPA step in to ensure that the statutory requirements are honored.14 EPA

14 According to the Agency, "[i]t has proven to be relatively rare that a state agency has put EPA in the position of having to exercise [its] authority," noting that only two other reported judicial decisions concern EPA orders occasioned by States' faulty BACT determinations. Brief for Respondents 30, and n. 9 (citing Allsteel, Inc. v. EPA, 25 F. 3d 312 (CA6 1994), and Solar Turbines Inc. v. Seif, 879 F. 2d 1073 (CA3 1989)). EPA's restrained and moderate use of its authority hardly supports the dissent's speculation that the federal Agency will "displac[e]" or "degrad[e]" state agencies or relegate them to the performance of "ministerial" functions. Post, at 516, 518. Nor has EPA ever asserted authority to override a state-court judgment. Cf. post, at 511. Preclusion principles, we note in this regard, unquestionably do apply against the United States, its agencies and officers. See, e. g., Montana v. United States, 440 U. S. 147 (1979).

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