510
Kennedy, J., dissenting
ability of state judicial review defeats the Government's argument that, absent EPA's oversight, there is a legal vacuum where BACT decisions are not subject to review.
Requiring EPA to seek administrative and judicial review of a State's BACT determination, instead of allowing it to be overturned by fiat, avoids the anomaly of shifting the burden of pleading and of initiating litigation from EPA to the State. Whether the BACT decision is reviewed in state court, or in federal district court if that option is available, see supra, at 509 and this page, EPA, as petitioner, bears the initial burden and costs of filing a petition for review alleging that the State acted arbitrarily. Under the scheme endorsed by the majority today, the tables are turned. Once EPA has issued an enforcement order, and the State seeks to invalidate that order, the State bears the burden of alleging that EPA acted arbitrarily. EPA and the majority concede that, because States enjoy substantial discretion in making BACT determinations, courts reviewing EPA's order must ask not simply whether EPA acted arbitrarily but the convoluted question whether EPA acted arbitrarily in finding the State acted arbitrarily. Even under this unwieldy standard of review, and even if the burdens of persuasion and production remain with EPA, see ante, at 493-494, the initial burden of pleading and litigation now belongs to the State.
To make its decision more palatable, the majority holds that EPA still bears the burdens of production and persuasion, but there is little authority for this. The Court purports to rely on McCormick on Evidence for the proposition that " 'looking for the burden of pleading is not a foolproof guide to the allocation of the burdens of proof.' " Ante, at 494, n. 17 (quoting 2 J. Strong, McCormick on Evidence § 337, pp. 411-412 (5th ed. 1999)). The example—affirmative defense—discussed in that passage of the treatise, however, is far afield from the issues raised in this case. In fact, the treatise instructs that "[i]n most cases, the party who has the burden of pleading a fact will have the burdens of producing
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