Alaska, Department of Environmental Conservation v. United States Environmental Protection Agency

ORDER

The Alaska Department of Environmental Conservation (“ADEC”) and Comineo Alaska, Inc. (“Comineo”) petition this Court for review of three enforcement orders (the “Orders”) entered by the United States Environmental Protection Agency (“EPA”), which effectively invalidated an air quality construction permit issued by ADEC for the construction of a power generator at Cominco’s Alaskan mining facility located about 100 miles above the Arctic Circle. Petitioners challenge the EPA’s authority to invalidate the permit under federal and state law. The EPA asserts that it has the authority to regulate such construction under the Clean Air Act (“CAA” or the “Act”) and further claims that this Court lacks subject matter jurisdiction to consider ADEC’s and Cominco’s petitions because the Orders are not “final agency action” subject to review in the United States Courts of Appeal.

We first consider the question of our jurisdiction to review the Orders. The parties agree that we have jurisdiction, if at all, pursuant to section 307(b)(1) of the CAA, 42 U.S.C. § 7607 (b)(1), which gives the Court jurisdiction over “any ... final action taken, by the Administrator.” The EPA argues that…