Alaska Department of Environmental Conservation v.
Environmental Protection Agency 540 U.S. 461 (2004)
Congress modified the Clear Air Act in 1977 to
create the Prevention of Serious Deterioration Program (PSD) (§§160-169).
The PSD basically said that areas that had better air
quality than EPA mandated were now required to take steps to ensure that
their air quality didn't deteriorate, even though it would still meet the
A lot of States have much cleaner air than Clean Air
Act requires, and you don't want them to start polluting up to the
The Red Dog Mine in Alaska was expanding, and the
increased activity would add more NOx pollutants to the air.
Under the terms of the PSD that Alaska had negotiation
with EPA, new projects like this required the use of Best Available
Control Technology (BACT) to limit emissions.
Red Dog offered to add pollution control equipment, and
the Alaska Department of Environmental Conservation (ADEC) approved the
EPA objected, and said that the pollution control
equipment Red Dog suggested was not the best available technology, and so
even though it reduced emissions somewhat, it did not meet the
requirements of the PSD.
ADEC argued that the best available equipment was
economically infeasible for Red Dog.
EPA issued an order stopping Red Dog from proceeding with
Under §113(a)(5) of the Clean air Act, EPA
can issue an order prohibiting construction whenever they find that a
State is not acting in compliance with any requirement related to the
construction of new sources." (See also §167).
ADEC sued EPA, claiming that their determination was
conclusive and that EPA had no authority to overrule it administratively.
The Appellate Court found for EPA. ADEC appealed.
The US Supreme Court affirmed and sided with EPA in a 5-4
The US Supreme Court looked to the wording of §113(a)(5)
and found that Congress intended EPA to have the authority to overrule
State agencies that fail to comply with their PSDs.
The Court found that EPA's authority is limited to when a
State agency's BACT determination is not based on a reasoned analysis.
Basically, EPA can't overrule the States whenever they
like, only when the State fails to make a reasonable argument to support
their ruling. (aka, was the State agency's action, "arbitrary,
capricious, an abuse of discretion, or not otherwise in accordance with