Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 32 (2004)

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492

ALASKA DEPT. OF ENVIRONMENTAL CONSERVATION v. EPA

Opinion of the Court

ministrative and judicial processes. Brief for Petitioner 34- 38.15 State review of BACT decisions, according to ADEC, allows development of an adequate factual record, properly imposes the burden of persuasion on EPA when it challenges a State's BACT determination, and promotes certainty. Id., at 36-37. Unless EPA review of BACT determinations is channeled into state administrative and judicial forums, ADEC suggests, "there is nothing to prevent the EPA from invalidating a BACT determination at any time—months, even years, after a permit has been issued." Id., at 35.

It would be unusual, to say the least, for Congress to remit a federal agency enforcing federal law solely to state court. We decline to read such an uncommon regime into the Act's silence. EPA, the expert federal agency charged with enforcing the Act, has interpreted the BACT provisions and its own 113(a)(5) and 167 enforcement powers not to require recourse to state processes before stopping a facility's con-15 From the availability of state-court judicial review, the dissent concludes, it necessarily "follows that EPA . . . must take the same procedural steps," of filing suit in state court, as any other person or entity seeking to challenge the issuance of a PSD permit. Post, at 509. Interpreted otherwise, the dissent asserts, the Act contains a "loophole" that allows an EPA "end run around the State's process." Post, at 511. In designing the Act, however, Congress often gave EPA a choice of enforcement measures. For example, EPA has three options to address a failure to comply with new source requirements. Compare 42 U. S. C. 7413(a)(5)(A) (EPA may "issue an order prohibiting the construction or modification of any major stationary source") with 7413(a)(5)(B) (EPA may "issue an administrative penalty order") and 7413(a)(5)(C) (EPA may "bring a civil action"). Other sections of the Act provide EPA with similar options. See, e. g., 7413(a)(1)-(3). Following the dissent's logic, EPA's authority to bring a civil action would rule out, as a "loophole," its authority to issue a stop-construction order.

Moreover, the existence of concurrent authority is hardly at odds with the Act. As ADEC itself concedes, EPA can issue a checking order if a PSD permit lacks a BACT determination, Brief for Petitioner 34, even if state-court jurisdiction could be invoked instead.

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