Cite as: 540 U. S. 461 (2004)
Kennedy, J., dissenting
California Law § 107, pp. 159-160 (9th ed. 1988) ("[Under] the principle of separation of powers . . . , one [department] cannot exercise or interfere with the functions of either of the others"). The Federal Government is free, within its vast legislative authority, to impose federal standards. For States to have a role, however, their own governing processes must be respected. New York v. United States, 505 U. S. 144 (1992). If, by some course of reasoning, state courts must live with the insult that their judgments can be revised by a federal agency, the Court should at least insist upon a clear instruction from Congress. That directive cannot be found here. Cf. Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) ("[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute" (internal quotation marks omitted)).
There is a final deficiency in the scheme the majority finds in the statute. Nothing in the Court's analysis prevents EPA from issuing an order setting aside a BACT determination months, or even years, later. Congress cannot have intended this result. After all, when Congress provides for EPA's involvement, it directs the agency to act sooner rather than later by establishing a preauthorization procedure. 42 U. S. C. § 7475(a)(8). The majority misses the point when it faults ADEC for "overlook[ing] the obvious difference between a statutory requirement . . . and a statutory authorization." Ante, at 491 (emphasis deleted). ADEC does not overlook the difference between approval before the fact and oversight after the fact. Rather, ADEC, unlike the majority, recognizes that the Act's explicit provision for a preauthorization process underscores the need for finality in state permitting decisions, making implausible an interpretation of the statute that would allow a post hoc veto procedure that upsets the same reliance and expectation interests.
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