Cite as: 540 U. S. 461 (2004)
Kennedy, J., dissenting
cility which does not conform to the requirements of this part . . . ." 42 U. S. C. § 7477. In short, EPA's enforcement authority can—indeed, must—be exercised at any point. In light of our precedents a court would be hard pressed to hold otherwise.
The majority seeks to limit the consequence of its holding by quoting the response by respondents' counsel at oral argument that ADEC could "absolutely" arrive at the same BACT determination if only it would pile on another layer of procedure and justify its decision on an " 'appropriate record.' " Ante, at 501-502 (quoting Tr. of Oral Arg. 35). As the Court of Appeals recognized in a prior case, however, this option gives no solace to the States:
"The hardship is the process itself. Process costs money. If a federal licensee must spend years attempting to satisfy an elaborate, shifting array of state procedural requirements, then he must borrow a fortune to pay lawyers, economists, accountants, archaeologists, historians, engineers, recreational consultants, environmental consultants, biologists and others, with no revenue, no near-term prospect of revenue, and no certainty that there ever will be revenue. Meanwhile, politics, laws, interest rates, construction costs, and costs of alternatives change. Undue process may impose cost and uncertainty sufficient to thwart the federal determination that a power project should proceed." Sayles Hydro Associates v. Maughan, 985 F. 2d 451, 454 (CA9 1993).
If there is to be a second look, notwithstanding the 18 months ADEC spent analyzing BACT, a third or fourth look is just as permissible. The majority creates a sort of Zeno's paradox for state agencies. Because there can always be an additional procedure to ensure that the preceding process was followed, no matter how many steps States take toward the objective, they may never reach it.
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