Cite as: 540 U. S. 461 (2004)
Kennedy, J., dissenting
evidence and of persuading the jury of its existence as well." Id., at 411. This is because "[t]he burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion." Id., at 412. In this case, EPA changed the status quo ante by issuing an order invalidating ADEC's decision. Without upsetting accepted evidentiary principles, the majority cannot explain why EPA, as respondent in federal court—as opposed to the State, as petitioner alleging that EPA's fait accompli was arbitrary—should bear the burdens of persuasion and production, or how this unusual reallocation of burdens should work in practice.
In any event, even the majority accepts that, under its reading of the statute, the State now bears the burden of pleading. With this burden-shifting benefit alone, EPA is most unlikely to follow the procedure, prescribed by federal law, of participating in the State's administrative process and seeking judicial review in state courts. Instead, EPA can simply issue a unilateral order invalidating the State's BACT determination and put the burden on the State to challenge EPA's order. This end run around the State's process is sure to undermine it. Unless Congress was on a fool's errand, the loophole the majority finds goes only to demonstrate the inconsistency between its approach and the statutory scheme.
There is a further, and serious, flaw in the Court's ruling. Suppose, before EPA issued its orders setting aside the State's BACT determination, an Alaska state court had reviewed the matter and found no error of law or abuse of discretion in ADEC's determination. The majority's interpretation of the statute would allow EPA to intervene at this point for the first time, announce that ADEC's determination is unreasoned under the CAA, and issue its own orders nullifying the state court's ruling. This reworking of the bal-
511
Page: Index Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NextLast modified: October 4, 2007