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Alaska Department of Environmental Conservation v. EPA | 540 U.S. 461 (2004)
Under the Clean Air Act, the federal government and states work together to improve air quality. But there are differences between how states and the Environmental Protection Agency, or E P A, interpret the act. In Alaska Department of Environmental Conservation versus E P A, we’ll see whether the E P A has the authority to overrule a state’s decision to permit the construction of a major emitting facility in an attainment area.
The prevention of significant deterioration program, or P S D, in the Clean Air Act ensures that air quality in attainment areas is maintained. The P S D program requires that major emitting facilities in attainment areas control emissions with the best available control technology, or BACT. BACT is determined on a case by case basis, based on economic, environmental, and other impacts.
In nineteen eighty eight, Teck Cominco, a mining company, received authorization from the Alaska Department of Environmental Conservation, the state’s permitting authority, to increase its zinc production at its mine. The department’s P S D permit initially authorized Cominco to add new diesel generators if it used selective catalytic reduction, or S C R, to reduce nitrogen oxide emissions by ninety percent. The department considered S C R to be BACT. Cominco amended its application and, in addition to adding a new generator, proposed that it would use Low NOx, an alternative control technology. Low NOx would reduce nitrogen oxide emissions by only thirty percent. Although Low NOx reduced emissions less than S C R, the department approved Cominco’s amended application. The E P A issued orders to prevent the department from issuing a P S D permit unless it could explain why S C R wasn’t BACT. The E P A also prohibited Cominco from starting construction.
Cominco and the department petitioned the Ninth Circuit for review. The court held that the Clean Air Act gives the E P A the authority to determine whether a state’s BACT decision is reasonable. The United States Supreme Court granted cert.
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