Alaska Department of Environmental Conservation v. EPA

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Alaska Department of Environmental Conservation v. EPA
Seal of the United States Supreme Court.svg
Argued October 8, 2003
Decided January 21, 2004
Full case name Alaska Department of Environmental Conservation v. Environmental Protection Agency, et al.
Citations 540 U.S. 461 (more)
Court membership
Case opinions
Majority Ginsburg, joined by Stevens, O'Connor, Souter, Breyer
Dissent Kennedy, joined by Rehnquist, Scalia, Thomas

Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004),[1] is a U.S. Supreme Court case clarifying the scope of state environmental regulators as well as the Environmental Protection Agency. In a 5-4 decision, the Supreme Court found the EPA has authority to overrule state agency decisions under the Clean Air Act that a company is using the "best available controlling technology" to prevent pollution.


The Clean Air Act requires state agencies to determine optimal methods of preventing air quality degradation in areas that meet national clean air standards.[2] The Act regulates air quality and establishes National Ambient Air Quality Standards in every state to prevent public health issues.[3] The Act prohibits construction of major air polluting facilities not equipped with "the best available control technology" (BACT).[4]

In 1998, Teck Cominco Alaska, requested a permit to build an additional generator and modify an existing generator at its mines in order to expand zinc extraction. In May 1999, the Alaska Department of Environmental Conservation (ADEC) issued the permit, and a technical report, which concluding that "Low NOx" technology was BACT and identifying "selective catalytic reduction" (SCR) as the best control technology. The EPA opposed the permit, objected that ADEC had identified SCR as the best control technology, but failed to require it as BACT.

ADEC issued a second report reinforcing the original findings, but conceded the lack of cost data from Teck Cominco made it impossible to evaluate the impact of SCR on the mine's profitability. EPA issued orders to ADEC under §§113(a)(5) and 167 of the act, prohibiting ADEC from issuing permits to Teck Cominco without documenting why SCR was not BACT. ADEC appealed the EPA's orders to the Ninth Circuit Court of Appeals, arguing that the EPA did not have the right to interfere with the state agency's decision. The Ninth Circuit sided with EPA, and ADEC appealed.


Under the Clean Air Act, can EPA block construction of a new major pollutant emitting facility permitted by a state environmental regulator, when EPA finds the state environmental regulator's determination unreasonable? What standard of review applies to such actions?


Ginsburg's opinion for the court[edit]

The Court held that the Clean Air Act authorized the EPA to bar the construction of the polluting facility in Alaska. EPA correctly interpreted the Clean Air Act to give EPA authority to review state authorities' BACT determinations.[5]

Since the Act does not specify a standard for judicial review, the court applied "the familiar default standard of the Administrative Procedure Act,[6]" of whether the EPA's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The court found that, although EPA's orders were explained with "less than ideal clarity,[7]" EPA's comments and orders were not arbitrary, capricious, or an abuse of discretion.

Kennedy's dissent[edit]

Justice Kennedy wrote a dissent for Justices Rehnquist, Scalia, and Thomas. Justice Kennedy found that the State of Alaska procedures were in full compliance with the Clean Air Act and accompanying regulations promulgated by EPA. EPA's action to overturn APEC's decision was based on nothing more than its substantive disagreement with the State's discretionary judgment, exceeded its powers in setting aside Alaska's BACT determination.

See also[edit]


  1. ^ 540 U.S. 461 (2004)
  2. ^ 42 U.S.C. § 7470(1)
  3. ^ EPA,OA,OP,ORPM,RMD, US. "Summary of the Clean Air Act". Retrieved 2017-02-15. 
  4. ^ 42 U.S.C. § 7475(a)(4)
  5. ^ The court found such authority in 42 U.S.C. §§113(a)(5) and 167
  6. ^ 5 U.S.C. § 706(2)(A)
  7. ^ Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974)