508
Kennedy, J., dissenting
state agency to make BACT determinations, EPA must be satisfied that the State provides "an opportunity for state judicial review." 61 Fed. Reg. 1882 (1996). Furthermore, before an individual permit may issue, the State must allow all "interested persons," including "representatives of the [EPA] Administrator," to submit comments on, among other things, "control technology requirements." 42 U. S. C. § 7475(a)(2). To facilitate EPA's participation in the State's public comment process, the statute further provides that specific procedures be followed to inform the EPA Administrator of "every action" taken in the course of the permit approval process. § 7475(d) ("Each State shall transmit to the Administrator a copy of each permit application relating to a major emitting facility received by such State and provide notice to the Administrator of every action related to the consideration of such permit"). Any person who participated in the comment process can pursue an administrative appeal of the State's decision, followed, as mentioned, by judicial review in state courts.
EPA followed none of the normal procedures here. Only after the period for public comments expired did it intervene and seek to overturn Alaska's decision that Low NOx was BACT. To justify its decision to opt out of the State's administrative and judicial review process and, instead, to issue a unilateral order after everyone had spoken, EPA complains that it has not before intervened in "any State administrative review proceedings in State courts" and should not now be forced to do so. Tr. of Oral Arg. 35. With scant analysis, the majority agrees. Ante, at 492 ("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"). The problem, of course, is that it is all the more unusual to allow a federal agency to take unilateral action to set aside a State's administrative decision.
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