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Alaska, Department of Environmental Conservation v. EPA
(U.S. Supreme Court)
EPA authority over state CAA permitting
The Supreme Court held 1/21/04, in a 5-4 decision, that the Environmental Protection Agency (“EPA”) may override a state’s exercise of authority under Section 169(3) of the Clean Air Act (“CAA”), 42 U.S.C. § 7479(3). Under the CAA, a new facility in an “attainment,” or already-clean, area must use the “best available control technology” (“BACT”) to control the emission of certain regulated pollutants. Section 169(3) provides that a “permitting authority” (ordinarily a state environmental agency) may determine the BACT for a proposed facility in an attainment area on a case-by-case basis taking into account several enumerated factors. The Supreme Court held that the BACT requirement constrains a state’s exercise of discretion under Section 169(3). It further held that the EPA had authority, under Sections 113(a)(5) and 167 of the CAA, to verify whether a state had complied with the BACT requirement and issue a stop-construction order if a state’s BACT selection is unreasonable. This case is important to any business engaging in activities that implicate the CAA or other federal statutes delegating authority to the States.
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