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Sections 113(a)(5) and 167 of the Clean Air Act (CAA) lodge in the Environmental Protection Agency (EPA) encompassing supervisory responsibility over the construction and modification of pollutant emitting facilities in areas covered by the Prevention of Significant Deterioration (PSD) program. 42 U.S.C.S. §§ 7413(a)(5), 7477. In notably capacious terms, Congress arms EPA with authority to issue orders stopping construction when a state is not acting in compliance with any CAA requirement or prohibition relating to the construction of new sources or the modification of existing sources, 42 U.S.C.S. § 7413(a)(5), or when construction or modification of a major emitting facility does not conform to the requirements of the PSD program, 42 U.S.C.S. § 7477.
Under the Prevention of Significant Deterioration (PSD) program of the Clean Air Act (CAA), as amended, § 165(a)(4) of the CAA provided that no major air pollutant-emitting facility could be constructed unless the facility was equipped with the best available control technology (BACT). In addition, § 113(a)(5) of the CAA authorized the United States Environmental Protection Agency (EPA), when it found that a state was not complying with a CAA requirement governing construction of a pollutant source, to issue an order prohibiting construction, to prescribe an administrative penalty, or to commence a civil action for injunctive relief. Moreover, § 167 of the CAA instructed the EPA to take measures, including issuance of an order, or seeking injunctive relief, necessary to prevent the construction of a major pollutant-emitting facility that did not conform to the PSD requirements of the CAA.
The Alaska department of environmental conservation made a BACT decision under which the department issued a permit that would have allowed a company to construct, in the state on some diesel-electric generators at a zinc mine, pollution-control devices that had a less-polluting alternative. The EPA issued orders, purportedly under §§ 113(a)(5) and 167, that (1) prohibited the department from issuing a PSD permit to the company without satisfactorily documenting why the less-polluting alternative was not BACT, and (2) generally prohibited the company from beginning construction or modification activities at the mine.
In response to challenges to the EPA orders by the department and the company, the United States Court of Appeals for the Ninth Circuit concluded that the court had jurisdiction over the challenges. Subsequently, the Court of Appeals concluded that the EPA (1) had the authority under §§ 113(a)(5) and 167 to determine the reasonableness or adequacy of the department's justification for its BACT decision, and (2) properly had exercised the EPA's discretion in issuing the orders.
Was the judgment upholding the EPA stop-orders proper?
The United States Supreme Court held that the EPA had supervisory authority over the reasonableness of the agency's BACT determination, and the EPA properly determined that the agency's BACT determination lacked evidentiary support. The EPA option to seek judicial review of the agency's issuance of the permit did not preempt the authority of the EPA to issue the stop-orders, and the inconsistency of the agency findings concerning the economic feasibility of the most effective control measure furnished no tenable accounting for the agency's BACT determination.