UNION ELECTRIC CO. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.

No. 74-1542

SUPREME COURT OF THE UNITED STATES

427 U.S. 246; 96 S. Ct. 2518; 49 L. Ed. 2d 474; 1976 U.S. LEXIS 108; 8 ERC (BNA)

2143; 6 ELR 20570

Argued January 21, 1976

June 25, 1976

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

SUMMARY:

An electric utility company serving large portions of Missouri filed a petition, in the Court of Appeals for the

Eighth Circuit, for review of the approval, by the Administrator of the Environmental Protection Agency, of the

Missouri plan implementing the national ambient air quality standards prescribed by 110(a)(2) of the Clean Air Act, as

added by 1970 amendments (42 USCS 1857c-5(a)(2)). The petition was filed more than 30 days after the

Administrator's approval, under 307(b)(1) of the Act (42 USCS 1857h-5(b)(1)), which authorizes such filing only if the

petition is "based solely on grounds arising after such 30th day." Insofar as the petitioner's claim of newly discovered or

available information was grounded on an assertion of economic and technological infeasibility, the Court of Appeals

held itself to be without jurisdiction to consider the petition and dismissed it (515 F2d 206).

On certiorari, the United States Supreme Court affirmed. In an opinion by Marshall, J., expressing the unanimous

view of the court, it was held that a court of appeals reviewing an EPA approved plan cannot set it aside on the ground

that it is economically or technologically infeasible, no matter when these grounds are raised.

Powell, J., joined by Burger, Ch. J., concurring, expressed the view that Congress, if fully aware of "this draconian

possibility" of the provisions of the Act, would strike a different balance.

LAWYERS' EDITION HEADNOTES:

[***LEdHN1]

HEALTH §1.7

air pollution -- state implementation plan -- approval by EPA -- scope of judicial review --

Headnote:[1A][1B]

Page 1
The operator of an emission source regulated by the Clean Air Act, as amended (42 USCS 1857 et seq.), is not

entitled, in a petition for review of a state implementation plan approved by the EPA--filed under the provision of

307(b)(1) of the Act (42 USCS 1857h-5(b)(1)) which allows such a petition after 30 days if "based solely on grounds

arising after such 30th day"--to raise the claim that it is economically or technologically infeasible to comply with the

plan, since (1) such claims may not be considered by the Administrator of the EPA in evaluating a state requirement

that primary ambient air quality standards be met in the mandatory 3 years; (2) the Administrator must approve state

implementation plans more stringent than federal law requires if they meet the minimum requirements of 110(a)(2) of

the Act (42 USCS 1857c-5(a)(2)), so that the language of 110(a)(2)(A) provides no basis for the Administrator ever to

reject a state implementation plan on the grounds raised by the operator; and (3) accordingly, a court of appeals

reviewing an approved plan under 307(b)(1) cannot set it aside on those grounds, no matter when they are raised.

[***LEdHN2]

ERROR §1084(2)

question not raised by certiorari -- Clean Air Act --

Headnote:[2A][2B]

Although certiorari was not sought on the petitioner's claim that state standards for national ambient air quality

exceeded those necessary for compliance with the national standards required by 110(a)(2) of the Clean Air Act, as

amended (42 USCS 1857c-5(a)(2)), the United States Supreme Court will consider this question where it has been

briefed for the court and the court finds it necessary to resolve it in deciding the case before it.

[***LEdHN3]

HEALTH §1.7

air pollution -- state implementation plan -- EPA approval -- determinative factors --

Headnote:[3]

The mandatory term "shall" in 110(a)(2) of the Clean Air Act, as amended (42 USCS 1857c-5(a)(2))--which

requires that a state implementation plan for attainment of national ambient air quality standards must satisfy eight

criteria set out in the statute and that if the plan was adopted after reasonable notice and hearing, the Administrator of

the EPA "shall approve" the proposed plan--makes it clear that the Administrator is not concerned with factors other

than those specified in 110(a)(2).

[***LEdHN4]

HEALTH §1.7

Clean Air Act -- state implementation plan -- EPA approval -- technological and economic infeasibility --

Headnote:[4A][4B][4C]

The "as may be necessary" requirement of 110(a)(2)(B) of the Clean Air Act, as amended (42 USCS

1857c-5(a)(2)(B))--providing that the Administrator of the EPA shall approve a state implementation plan for

attainment of a national primary ambient air quality if it includes such measures "as may be necessary" to insure such

attainment--demands only that the state meet the "minimum conditions" of 110(a)(2); while the Administrator may

consider whether it is economically or technologically possible for the state plan to proceed more rapidly than it does

and may, upon such determination, reject the plan as not moving "as expeditiously as practicable" in achieving primary

standards or as failing to attain secondary standards within a reasonable time, there is no need for the Administrator to

Page 2

427 U.S. 246, *; 96 S. Ct. 2518, **;

49 L. Ed. 2d 474, ***LEdHN1; 1976 U.S. LEXIS 108
reject an economically or technologically "infeasible" state plan on the ground that anticipated noncompliance will

cause the state to fall short of the national standards, since polluters objecting to such a state scheme must seek their

relief from the state.

[***LEdHN5]

HEALTH §1.7

Clean Air Act -- 1970 amendments -- state power -- technological or economic infeasibility --

Headnote:[5A][5B]

The 1970 Amendments (PL 91-604, 84 Stat 1676) to the Clean Air Act (42 USCS 1857 et seq.) allow claims of

technological and economic infeasibility to be raised in situations where consideration of such claims will not

substantially interfere with the primary congressional purpose of prompt attainment of national air quality standards;

however, the Amendments do not require the states to formulate their implementation plans with deference to such

claims, to grant variances on those or any other grounds, or to provide judicial review of such actions, since the

Amendments leave all such decisions to the states; so long as these national standards are met, the state may select

whatever mix of emission control devices it desires.

[***LEdHN6]

HEALTH §1.7

air pollution -- EPA's compliance order -- technical and economical factors --

Headnote:[6]

Claims of technological or economic infeasibility are relevant to the fashioning, by the Administrator of the EPA,

of an appropriate compliance order under 113(a)(4) of the Clean Air Act (42 USCS 1857c-8(a)(4)), dealing with the

federal procedures of enforcing the Act.

[***LEdHN7]

LAW §200

due process question -- availability of judicial review --

Headnote:[7A][7B]

In the absence of a showing that 307(b)(1) of the Clean Air Act as amended (42 USCS 1857h-5(b)(1)), providing

for judicial review of approval, by the Administrator of the EPA, of a plan implementing a national ambient air quality

standard, affords the only opportunity for an air polluter to raise claims of economic and technological impossibility of

compliance with the plan, the United States Supreme Court, on judicial review of the Administrator's approval, cannot

resolve the question whether the due process clause of the Fifth Amendment demands that at some time the polluter be

afforded the opportunity to raise before a court claims of such impossibility.

SYLLABUS

Section 110 (a)(1) of the Clean Air Act, as added by the 1970 Amendments to the Act, requires that each State

formulate, subject to approval by the Administrator of the Environmental Protection Agency (EPA), an implementation

plan providing for attainment of national ambient air quality standards, both primary standards (those necessary to

protect the public health) and secondary standards (those necessary to protect the public welfare). Section 110(a)(2)

Page 3

427 U.S. 246, *; 96 S. Ct. 2518, **;

49 L. Ed. 2d 474, ***LEdHN4; 1976 U.S. LEXIS 108
provides that the Administrator "shall approve" the proposed plan if it has been adopted after public notice and hearing

and meets eight specified criteria, including provisions for attaining the primary standards "as expeditiously as

practicable but... in no case later than three years from the date of approval of such plan," and of the secondary

standards within a "reasonable time," and provisions for such control measures "as may be necessary" to attain both the

primary and secondary standards. Section 307(b)(1) of the Act provides that a petition for review of the Administrator's

"action in approving... [the] implementation plan" may be filed in the appropriate United States court of appeals, and

must be filed within 30 days from the date of such approval, or after such date if the petition is based on grounds

arising after the 30th day. Petitioner electric utility company, whose coal-fired generating plants are subject to the

sulfur dioxide restrictions in the Missouri implementation plan, did not seek review of the Administrator's approval of

that plan within the required 30 days but rather applied to the state and county agencies for, and received, one-year

variances. At a time when petitioner was seeking extension of these variances, the Administrator notified it that sulfur

dioxide emissions from its plants were violating the Missouri plan. Thereupon petitioner filed a petition for review of

the Administrator's approval of the plan, claiming that various economic and technological difficulties had arisen more

than 30 days after the approval, making compliance with the emission limitations impossible. The Court of Appeals

dismissed the petition for lack of jurisdiction, holding that only matters which, if known to the Administrator at the time

he approved the state plan, would justify setting aside the approval are properly reviewable after the 30-day period, and

that since claims of economic and technological infeasibility, such as petitioner was asserting here, could not properly

justify the Administrator's rejection of a plan, such claims could not serve at any time as the basis for a court's

overturning a plan. Held:

1. Since, regardless of when a petition for review is filed under § 307(b)(1), the court is limited to reviewing "the

Administrator's action in approving... [the] implementation plan," if new "grounds" are alleged, they must be such that,

had they been known at the time the plan was presented to the Administrator for approval, it would have been an abuse

of discretion for him to approve the plan. A contrary holding would shift a substantial responsibility in administering

the Act from the Administrator and the state agencies to the federal courts. Pp. 255-256.

2. Since both the language of the relevant provisions of the Clean Air Amendments of 1970, especially § 110(a)(2),

and their legislative history make it clear that Congress intended that grounds of economic and technological

infeasibility be deemed wholly foreign to the Administrator's consideration of a state implementation plan, a court of

appeals reviewing an approved plan under § 307(b)(1) cannot set it aside on such grounds, no matter when they are

raised. Pp. 256-269.

(a) The mandatory "shall" in the provision of § 110(a)(2) that the Administrator "shall approve" an implementation

plan if it satisfies the eight specified criteria, clearly indicates that the Administrator is not to be concerned with factors

other than those specified, none of which appears to permit consideration of economic or technological infeasibility. P.

257.

(b) The criterion of § 110(a)(2) that the primary air quality standards be met "as expeditiously as practicable but...

in no case later than three years," does not require consideration of claims of economic and technological infeasibility,

but, as both the language and legislative history of that criterion make clear, it was intended that the Administrator must

approve a plan that provides for attainment of the primary standards in three years even if attainment does not appear

possible, the three-year deadline being central to the regulatory scheme of technology forcing. Pp. 257-260.

(c) The criterion of § 110(a)(2) that the state implementation plan contain such control measures "as may be

necessary" to achieve the primary and secondary standards does not preclude a State from submitting a plan more

stringent than federal law demands, but such requirement demands only that the proposed plan meet the minimum

requirements of § 110(a)(2) and provides no basis for the Administrator ever to reject a state implementation plan on the

ground that it is economically or technologically infeasible. Pp. 260-265.

(d) Since the 1970 Amendments to the Act afford ample opportunity for considering claims of economic and

technological infeasibility as long as there will not be substantial interference with the primary goal of promptly

Page 4

427 U.S. 246, *; 96 S. Ct. 2518, **;

49 L. Ed. 2d 474, ***LEdHN7; 1976 U.S. LEXIS 108
attaining the national standards, to allow such claims to be raised by appealing the Administrator's approval of an

implementation plan would frustrate congressional intent; would permit a proposed plan to be struck down as infeasible

before it is given a chance to work, even though Congress clearly contemplated that some plans would be infeasible

when proposed; and would also permit the Administrator or a federal court to reject a State's legislative choices in

regulating air pollution, even though Congress plainly left with the States, so long as national standards were met, the

power to determine which sources would be burdened by regulation and to what extent. Pp. 266-269.

515 F. 2d 206, affirmed.

MARSHALL, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which

BURGER, C.J., joined, post, p. 269.

COUNSEL: William H. Ferrell argued the cause and filed briefs for petitioner.

Assistant Attorney General Taft argued the cause for respondent Environmental Protection Agency. With him on the

brief were Solicitor General Bork, Deputy Solicitor General Randolph, and Edmund B. Clark. John C. Danforth,

Attorney General of Missouri, pro se, and Walter W. Nowotny, Jr., and Dan Summers, Assistant Attorneys General,

filed briefs for respondents Danforth et al. *

* Briefs of amici curiae urging reversal were filed by H. Edward Dunkelberger, Jr., Theodore L. Garrett, and A.

Joseph Dowd for the Appalachian Power Co. et al.; by Cameron F. MacRae, Harry H. Voigt, and Henry V.

Nickel for the Edison Electric Institute; and by Ronald A. Zumbrun and Raymond M. Momboisse for the Pacific

Legal Foundation.

Lewis C. Green filed a brief for Coalition for the Environment, St. Louis Region, as amicus curiae urging

affirmance.

JUDGES: Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens.

OPINION BY: MARSHALL

OPINION

[*249] [***478] [**2522] MR. JUSTICE MARSHALL delivered the opinion of the Court.

[***LEdHR1A] [1A]After the Administrator of the Environmental Protection Agency (EPA) approves a state

implementation plan under the Clean Air Act, the plan may be challenged in a court of appeals within 30 days, or after

30 days have run if newly discovered or available information justifies subsequent review. We must decide whether the

operator of a regulated emission source, in a petition [***479] for review of an EPA-approved state plan filed after the

original 30-day appeal period, can raise the claim that it is economically or technologically infeasible to comply with

the plan.

I

We have addressed the history and provisions of the Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat.

1676, in detail in Train v. Natural Resources Defense Council (NRDC), 421 U.S. 60 (1975), and will not repeat that

discussion here. Suffice it to say that the Amendments reflect congressional dissatisfaction with the progress of existing

air pollution programs and a determination to "tak[e] a stick to the States," id., at 64, in order to guarantee the prompt

attainment and maintenance of specified air quality standards. The heart of the Amendments is the requirement that

each State formulate, subject to EPA approval, an implementation plan designed to achieve national primary ambient air

Page 5

427 U.S. 246, *; 96 S. Ct. 2518, **;

49 L. Ed. 2d 474, ***; 1976 U.S. LEXIS 108
quality standards -- those necessary to protect the public health -- "as expeditiously as practicable but... in no case later

than three years from the date of approval [*250] of such plan." § 110(a)(2)(A) of the Clean Air Act, as added, 84 Stat.

1680, 42 U.S.C. § 1857c-5(a)(2)(A). The plan must also provide for the attainment of national secondary ambient air

quality standards -- those necessary to protect the public welfare -- within a "reasonable time." Ibid. Each State is given

wide discretion in formulating its plan, and the Act provides that the Administrator "shall approve" the proposed plan if

it has been adopted after public notice and hearing and if it meets eight specified criteria. § 110(a)(2). 1

1 Section 110(a)(2), 42 U.S.C. § 1857c-5(a)(2), provides in full:

"The Administrator shall, within four months after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such

plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that --

"(A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously as practicable but (subject to subsection (e)) in no case

later than three years from the date of approval of such plan (or any revision thereof to take account of a revised

primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary standard will be attained;

"(B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and

such other measures as may be necessary to insure attainment and maintenance of such primary or secondary

standard, including, but not limited to, land use and transportation controls;

"(C) it includes provision for establishment and operation of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and analyze data on ambient air quality and, (ii) upon request,

make such data available to the Administrator;

"(D) it includes a procedure, meeting the requirements of paragraph (4), for review (prior to construction or

modification) of the location of new sources to which a standard of performance will apply;

"(E) it contains adequate provisions for intergovernmental cooperation, including measures necessary to

insure that emissions of air pollutants from sources located in any air quality control region will not interfere

with the attainment or maintenance of such primary or secondary standard in any portion of such region outside

of such State or in any other air quality control region;

"(F) it provides (i) necessary assurances that the State will have adequate personnel, funding, and authority

to carry out such implementation plan, (ii) requirements for installation of equipment by owners or operators of

stationary sources to monitor emissions from such sources, (iii) for periodic reports on the nature and amounts of

such emissions; (iv) that such reports shall be correlated by the State agency with any emission limitations or

standards established pursuant to this Act, which reports shall be available at reasonable times for public

inspection; and (v) for authority comparable to that in section 303, and adequate contingency plans to implement

such authority;

"(G) it provides, to the extent necessary and practicable, for periodic inspection and testing of motor

vehicles to enforce compliance with applicable emission standards; and

"(H) it provides for revision, after public hearings, of such plan (i) from time to time as may be necessary to

take account of revisions of such national primary or secondary ambient air quality standard or the availability

of improved or more expeditious methods of achieving such primary or secondary standard; or (ii) whenever the

Administrator finds on the basis of information available to him that the plan is substantially inadequate to

achieve the national ambient air quality primary or secondary standard which it implements."

Page 6

427 U.S. 246, *249; 96 S. Ct. 2518, **2522;

49 L. Ed. 2d 474, ***479; 1976 U.S. LEXIS 108
[*251] On [***480] [**2523] April 30, 1971, the Administrator promulgated national primary and secondary

standards for six air pollutants he found to have an adverse effect on the public health and welfare. 40 CFR pt. 50

(1975). See § 108(a) of the Act, as added, 84 Stat. 1678, 42 U.S.C. § 1857c-3(a). Included among them was sulfur

dioxide, at issue here. 40 CFR §§ 50.4- 50.5 (1975). After the promulgation of the national standards, the State of

Missouri formulated its implementation plan and submitted it for approval. Since sulfur dioxide levels exceeded

national primary standards in only one of the [*252] State's five air quality regions -- the Metropolitan St. Louis

Interstate region, 40 CFR § 52.1321 (1975) -- the Missouri plan concentrated on a control strategy and regulations to

lower emissions in that area. The plan's emission limitations were effective at once, but the State retained authority to

grant variances to particular sources that could not immediately comply. 2 Mo. Rev. Stat. § 203.110 (1972). The

Administrator approved the plan on May 31, 1972. See 40 CFR § 52.1320 et seq. (1975).

2 The plan was designed to attain primary and secondary air quality standards in the Metropolitan St. Louis

Interstate region by July 1975. See 40 CFR § 52.1332 (1975).

Petitioner is an electric utility company servicing the St. Louis metropolitan area, large portions of Missouri, and

parts of Illinois and Iowa. Its three coal-fired generating plants in the metropolitan St. Louis area are subject to the

sulfur dioxide restrictions in the Missouri implementation plan. Petitioner did not seek review of the Administrator's

approval of the plan within 30 days, as it was entitled to do under § 307(b)(1) of the Act, as added, 84 Stat. 1708, 42

U.S.C. § 1857h-5(b)(1), but rather applied to the appropriate state and county agencies for variances from the emission

limitations affecting its three plants. Petitioner received one-year variances, which could be extended upon

reapplication. The variances on two of petitioner's three plants had expired and petitioner was applying for extensions

when, on May 31, 1974, the Administrator notified petitioner that sulfur dioxide emissions from its plants violated the

emission limitations contained in the Missouri plan. 3 See 40 Fed. Reg. 3566 (1975). Shortly thereafter [*253]

[***481] petitioner filed a petition in the Court of Appeals for the Eighth Circuit for review of the Administrator's 1972

approval of the Missouri implementation plan.

3 The notice included all three plants, even though the variance on one of them had not yet expired, because the

one variance still in effect had not been submitted to the EPA as a plan revision under § 110(a)(3)(A), as

amended, 88 Stat. 256, 42 U.S.C. § 1857c-5(a)(3)(A) (1970 ed., Supp. IV), and therefore was not part of the

applicable implementation plan. See n. 15, infra,

[***LEdHR2A] [2A]Section 307(b)(1) allows petitions for review to be filed in an appropriate court of appeals

more than 30 days after the Administrator's approval of an implementation plan only if the petition is "based solely on

grounds arising after such 30th day." Petitioner claimed to meet this requirement by asserting, inter alia, that various

economic and technological difficulties had arisen more than 30 days after the Administrator's approval and that these

difficulties made compliance with the emission limitations impossible. 4 The Court of Appeals [*254] ordered

[**2524] briefing on the question of its subject-matter jurisdiction to hear the case and, after argument, granted the

motions of the EPA and intervenor-respondents, the Attorney General of Missouri and the Missouri Air Conservation

Commission, to dismiss the petition for review for lack of jurisdiction.

4 Petitioner also claimed that the presence of sulfur dioxide in the ambient air should no longer be regarded as

a health hazard and that compliance with the Missouri implementation plan was not necessary for attainment of

national primary or secondary air quality standards. The Court of Appeals found that these claims were not

sufficient to establish jurisdiction under § 307(b)(1).

The court held that the challenge to the validity of regulating sulfur dioxide was not properly before it

because the alleged new information had not previously been presented to the Administrator for action, a

procedure the court held was necessary for the exercise of its jurisdiction. 515 F. 2d 206, 220 (1975). See also

Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F. 2d 654 (1975). In any case, the court

held, the challenge was to a national air quality standard and as such could be brought only in the Court of

Appeals for the District of Columbia Circuit under § 307(b)(1). 515 F. 2d, at 220. While petitioner sought

Page 7

427 U.S. 246, *250; 96 S. Ct. 2518, **2522;

49 L. Ed. 2d 474, ***479; 1976 U.S. LEXIS 108
certiorari on this ruling, our grant of the writ was limited to the question whether claims of economic or

technical infeasibility could be raised in a challenge to a state implementation plan. 423 U.S. 821 (1975).

[***LEdHR2B] [2B]The Court of Appeals also found that no claim was stated by petitioner's assertion

that the Missouri standards exceeded those necessary for compliance with the national standards because, the

court held, the States are free to adopt stricter standards than the national standards under § 116 of the Clean Air

Act, as amended, 84 Stat. 1689 and 88 Stat. 259, 42 U.S.C. § 1857d-1 (1970 ed., Supp. IV). 515 F. 2d, at 220.

While certiorari was not sought on this question, it has been briefed for us and we find it necessary to resolve it

in deciding this case. See infra, at 261-266.

The court held that "only matters which, if known to the Administrator at the time of his action [in approving a

state implementation plan], would justify setting aside that action are properly reviewable after the initial 30 day review

period." 515 F. 2d 206, 216 (1975). Since, in the court's view, claims of economic and technological infeasibility could

not properly provide a basis for the Administrator's rejecting a plan, such claims could not serve -- at any time -- as the

basis for a court's overturning an approved plan. Accordingly, insofar as petitioner's claim of newly discovered or

available information was grounded on an assertion of economic and technological infeasibility, the court held itself to

be without jurisdiction to consider the petition for review, and so dismissed the petition. In so holding the Court

[***482] of Appeals considered and rejected the contrary or partially contrary holdings of three other Circuits.

Buckeye Power, Inc. v. EPA, 481 F. 2d 162, 168-169 (CA6 1973) (but see id., at 173); Appalachian Power Co. v. EPA,

477 F. 2d 495, 505-507 (CA4 1973); Duquesne Light Co. v. EPA, 481 F. 2d 1 (CA3 1973); Getty Oil Co. v.

Ruckelshaus, 467 F. 2d 349 (CA3 1972), cert. denied, 409 U.S. 1125 (1973). See also St. Joe Minerals Corp. v. EPA,

508 F. 2d 743, 746-749 (CA3 1975), vacated and remanded, [*255] 425 U.S. 987 (1976); Duquesne Light Co. v. EPA,

522 F. 2d 1186 (CA3 1975), cert. pending, No. 75-736. On the other hand, the Eighth Circuit found support for its

position in the decisions of several other Circuits. South Terminal Corp. v. EPA, 504 F. 2d 646, 675-676 (CA1 1974);

Texas v. EPA, 499 F. 2d 289, 317 (CA5 1974); Natural Resources Defense Council v. EPA, 507 F. 2d 905, 914 (CA9

1974). See also Indiana & Michigan Electric Co. v. EPA, 509 F. 2d 839, 843-845 (CA7 1975). Cf. Buckeye Power, Inc.

v. EPA, 525 F. 2d 80 (CA6 1975). We granted certiorari to resolve the conflict among the Circuits, 423 U.S. 821

(1975), and we now affirm.

II

A

We reject at the outset petitioner's suggestion that a claim of economic or technological infeasibility may be

considered upon a petition for review based on new information and filed more than 30 days after approval of an

implementation plan even if such a claim could not be considered by the Administrator in approving a plan or [**2525]

by a court in reviewing a plan challenged within the original 30-day appeal period. In pertinent part § 307(b)(1)

provides:

"A petition for review of the Administrator's action in approving or promulgating any implementation

plan under section 110 ... may be filed only in the United States Court of Appeals for the appropriate

circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval,

or after such date if such petition is based solely on grounds arising after such 30th day."

Regardless of when a petition for review is filed under § 307(b)(1), the court is limited to reviewing "the

Administrator's [*256] action in approving... [the] implementation plan...." Accordingly, if new "grounds" are alleged,

they must be such that, had they been known at the time the plan was presented to the Administrator for approval, it

would have been an abuse of discretion for the Administrator to approve the plan. To hold otherwise would be to

transfer a substantial responsibility in administering the Clean Air Act from the Administrator and the state agencies to

the federal courts.

Page 8

427 U.S. 246, *254; 96 S. Ct. 2518, **2524;

49 L. Ed. 2d 474, ***LEdHR2A; 1976 U.S. LEXIS 108
B

Since a reviewing court -- regardless of when the petition for review is filed -- may consider claims of economic

and technological infeasibility only if the Administrator may consider such claims in approving or rejecting a state

implementation plan, we must address ourselves to the scope of the Administrator's responsibility. [***483] The

Administrator's position is that he has no power whatsoever to reject a state implementation plan on the ground that it is

economically or technologically infeasible, and we have previously accorded great deference to the Administrator's

construction of the Clean Air Act. See Train v. NRDC, 421 U.S., at 75. After surveying the relevant provisions of the

Clean Air Amendments of 1970 and their legislative history, we agree that Congress intended claims of economic and

technological infeasibility to be wholly foreign to the Administrator's consideration of a state implementation plan.

As we have previously recognized, the 1970 Amendments to the Clean Air Act were a drastic remedy to what was

perceived as a serious and otherwise uncheckable problem of air pollution. The Amendments place the primary

responsibility for formulating pollution control strategies on the States, but nonetheless subject [*257] the States to

strict minimum compliance requirements. These requirements are of a "technology-forcing character," Train v. NRDC,

supra, U.S., at 91, and are expressly designed to force regulated sources to develop pollution control devices that might

at the time appear to be economically or technologically infeasible.

[***LEdHR3] [3]This approach is apparent on the face of § 110(a)(2). The provision sets out eight criteria that an

implementation plan must satisfy, and provides that if these criteria are met and if the plan was adopted after reasonable

notice and hearing, the Administrator "shall approve" the proposed state plan. The mandatory "shall" makes it quite

clear that the Administrator is not to be concerned with factors other than those specified, Train v. NRDC, supra, at 71

n. 11, 79, and none of the eight factors appears to permit consideration of technological or economic infeasibility. 5

Nonetheless, if a basis is to be found for allowing the Administrator to consider such [**2526] claims, it must be

among the eight criteria, and so it is here that the argument is focused.

5 See n. 1, supra. Comparison of the eight criteria of § 110(a)(2) with other provisions of the Amendments

bolsters this conclusion. Where Congress intended the Administrator to be concerned about economic and

technological infeasibility, it expressly so provided. Thus, §§ 110(e), 110(f), 111(a)(1), 202(a), 211(c)(2)(A),

and 231(b) of the Amendments all expressly permit consideration, e.g., "of the requisite technology, giving

appropriate consideration to the cost of compliance." § 231(b), as added, 84 Stat. 1704, 42 U.S.C. § 1857f-9(b).

See also 42 U.S.C. §§ 1857c-5(e), 1857c-5(f), 1857c-6(a)(1), 1857f-1(a), 1857f-6c(c)(2)(A). Section 110(a)(2)

contains no such language.

It is suggested that consideration of claims of technological and economic infeasibility is required by the first

criterion -- that the primary air quality standards be met "as expeditiously as practicable but... in no case later than three

years..." and that the secondary air [*258] quality standards be met within a "reasonable time." § 110(a)(2)(A). The

argument is that what is "practicable" or "reasonable" cannot be determined without assessing whether what is proposed

is possible. This argument does not survive analysis.

Section 110(a)(2)(A)'s three-year [***484] deadline for achieving primary air quality standards is central to the

Amendments' regulatory scheme and, as both the language and the legislative history of the requirement make clear, it

leaves no room for claims of technological or economic infeasibility. The 1970 congressional debate on the

Amendments centered on whether technology forcing was necessary and desirable in framing and attaining air quality

standards sufficient to protect the public health, standards later termed primary standards. The House version of the

Amendments was quite moderate in approach, requiring only that health-related standards be met "within a reasonable

time." H.R. 17255, 91st Cong., 2d Sess., § 108(c)(1)(C)(i) (1970). The Senate bill, on the other hand, flatly required

that, possible or not, health-related standards be met "within three years." S. 4358, 91st Cong., 2d Sess., § 111(a)(2)(A)

(1970).

The Senate's stiff requirement was intended to foreclose the claims of emission sources that it would be

Page 9

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49 L. Ed. 2d 474, ***482; 1976 U.S. LEXIS 108
economically or technologically infeasible for them to achieve emission limitations sufficient to protect the public

health within the specified time. As Senator Muskie, manager of the Senate bill, explained to his chamber:

"'The first responsibility of Congress is not the making of technological or economic judgments -- or

even to be limited by what is or appears to be technologically or economically feasible. Our

responsibility is to establish what the public interest requires to protect the health of persons. This may

[*259] mean that people and industries will be asked to do what seems to be impossible at the present

time.'" 116 Cong. Rec. 32901-32902 (1970).

See also id., at 32919 (remarks of Sen. Cooper); 33115 (remarks of Sen. Prouty). This position reflected that of the

Senate committee:

"In the Committee discussions, considerable concern was expressed regarding the use of the concept

of technical feasibility as the basis of ambient air standards. The Committee determined that 1) the

health of people is more important than the question of whether the early achievement of ambient air

quality standards protective of health is technically feasible; and 2) the growth of pollution load in many

areas, even with application of available technology, would still be deleterious to public health.

"Therefore, the Committee determined that existing sources of pollutants either should meet the

standard of the law or be closed down...." S. Rep. No. 91-1196, pp. 2-3 (1970).

The Conference Committee and, ultimately, the entire Congress accepted the Senate's three-year mandate for the

achievement of primary air quality standards, and the clear import of that decision is that the Administrator must

approve a plan that provides for attainment of the primary standards in three years even if attainment does not appear

feasible. In rejecting the House's version of reasonableness, however, the conferees strengthened the Senate version.

The Conference Committee made clear that the States could not procrastinate until the deadline approached. Rather,

the primary standards had to be met in less than three years if possible; they had to be met "as expeditiously [***485]

as practicable." [*260] § 110(a)(2)(A). Whatever room there is for considering claims of infeasibility in the attainment

of primary standards must lie in this phrase, which is, [**2527] of course, relevant only in evaluating those

implementation plans that attempt to achieve the primary standard in less than three years.

It is argued that when such a state plan calls for proceeding more rapidly than economics and the available

technology appear to allow, the plan must be rejected as not "practicable." Whether this is a correct reading of §

110(a)(2)(A) depends on how that section's "as expeditiously as practicable" phrase is characterized. The

Administrator's position is that § 110(a)(2)(A) sets only a minimum standard that the States may exceed in their

discretion, so that he has no power to reject an infeasible state plan that surpasses the minimum federal requirements --

a plan that reflects a state decision to engage in technology forcing on its own and to proceed more expeditiously than is

practicable. On the other hand, petitioner and amici supporting its position argue that § 110(a)(2)(A) sets a mandatory

standard that the States must meet precisely, and conclude that the Administrator may reject a plan for being too strict

as well as for being too lax. Since the arguments supporting this theory are also made to show that the Administrator

must reject a state plan that provides for achieving more than the secondary air quality standards require, we defer

consideration of this question in order to outline the development and content of the secondary standards provision of §

110(a)(2)(A).

Secondary air quality standards, those necessary to protect the public welfare, were subject to far less legislative

debate than the primary standards. The House version of the Amendments treated welfare-related standards together

with health-related standards, and [*261] required both to be met "within a reasonable time." H.R. 17255, 91st Cong.,

2d Sess., §§ 107(e)(1), 108(c)(1)(C)(i) (1970). The Senate bill, on the other hand, treated health- and welfare-related

standards separately and did not require that welfare-related standards be met in any particular time at all, S. 4358, 91st

Cong., 2d Sess., §§ 110(a)(3), 110(b), 111(a)(2)(A) (1970), although the Committee Report expressed the desire that

they be met "as rapidly as possible." S. Rep. No. 91-1196, p. 11 (1970). The final Amendments also separated

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49 L. Ed. 2d 474, ***484; 1976 U.S. LEXIS 108
welfare-related standards from health-related standards, labeled them secondary air quality standards, and adopted the

House's requirement that they be met within a "reasonable time." §§ 109(b), 110(a)(2)(A). Thus, technology forcing is

not expressly required in achieving standards to protect the public welfare. 6

6 The Administrator appears to take this position in his guidelines for attaining secondary standards. See 40

CFR § 51.13(b) (1975).

It does not necessarily follow, however, that the Administrator may consider claims of impossibility in assessing a

state plan for achieving secondary standards. As with plans designed to achieve primary standards in less than three

years, the scope of the Administrator's power to reject a plan depends on whether the State itself may decide to engage

in technology forcing and adopt a [***486] plan more stringent than federal law demands. 7

7 A different question would be presented if the Administrator drafted the plan himself pursuant to § 110(c).

Cf. District of Columbia v. Train, 172 U.S. App. D.C. 311, 521 F. 2d 971 (1975); South Terminal Corp. v. EPA,

504 F. 2d 646 (CA1 1974). Whether claims of economic or technical infeasibility must be considered by the

Administrator in drafting an implementation plan is a question we do not reach.

Amici Appalachian Power Co. et al. argue that the Amendments do not give such broad power to the States.

[*262] They claim that the States are precluded from submitting implementation plans more stringent than federal law

demands by § 110(a)(2)'s second criterion -- that the plan contain such control devices "as may be necessary" to achieve

the primary and secondary air quality standards. § 110(a)(2)(B). 8 The contention [**2528] is that an overly

restrictive plan is not "necessary" for attainment of the national standards and so must be rejected by the Administrator.

9

8 See n. 1, supra.

9 Amici not only argue that the Administrator must reject state plans that attempt to attain the primary

standards more rapidly than "practicable" or the secondary standards in less than a "reasonable time," but also

that he must reject state implementation plans that call for more quantitative emission controls than those

necessary to meet the national primary and secondary standards. This argument adds nothing to deciding

whether claims of economic or technological infeasibility can be raised. If quantitatively stiffer standards are

barred, all plans containing them must be rejected, whether infeasible or not. In any case, as we make clear

below, the States may adopt such more rigorous emission standards, and the Administrator must approve plans

containing them if the minimum federal requirements are satisfied.

The principal support for this theory of amici lies in the fact that while the House and Senate versions of §

110(a)(2) both expressly provided that the States could submit for the Administrator's approval plans that were stricter

than the national standards required, see H.R. 17255, 91st Cong., 2d Sess., § 108(c) (1970); S. 4358, 91st Cong., 2d

Sess., § 111(a)(1) (1970), the section as enacted contains no such express language. Amici argue that the Conference

Committee must have decided to require state implementation plans simply -- and precisely -- to meet the national

standards. The argument of amici proves too much. A Conference Committee lacks power to make substantive

changes on matters about [*263] which both Houses agree. 2 U.S.C. § 190c (a) (Senate Conference Reports); Rule

XXVIII (3), Rules of the House of Representatives, and § 546, Jefferson's Manual, H. R. Doc. No. 384, 92d Cong., 2d

Sess., 526, 270-271 (1972); National Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 401 n. 10 (1976). Here the

Conference Report expressly notes that both the Senate and House bills would allow States to submit plans more

stringent than the national standards demand, and offers no suggestion that the Conference bill intended to change that

result, even if it could. H. R. Conf. Rep. No. 91-1783, p. 45 (1970). And while the final language of § 110 (a) (2) (B)

may be less explicit than the versions originally approved by the House and the Senate, the most natural reading of the

"as may be necessary" phrase in context is simply that the Administrator must assure that the minimal, or "necessary,"

requirements are met, not that he detect and reject [***487] any state plan more demanding than federal law requires.

10

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49 L. Ed. 2d 474, ***485; 1976 U.S. LEXIS 108
10 Subsequent legislation confirms that this was Congress' original intent. In response to the fuel shortages of

late 1973, Congress enacted the Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-319,

88 Stat. 246. The Act allows the Administrator to review state implementation plans and notify the States if

their restrictions on fuel-burning stationary sources may be relaxed without interfering with timely attainment

and maintenance of national air quality standards. 42 U.S.C. § 1857c-5 (3) (B) (1970 ed., Supp. IV). The

decision whether to relax restrictions, however, is left to the States. The Act shows congressional awareness and

approval of the fact that federally approved implementation plans may be stricter than necessary for attainment

of national standards.

This reading is further supported by practical considerations. Section 116 of the Clean Air Act, as added, 84 Stat.

1689, 42 U.S.C. § 1857d-1 (1970 ed., Supp. IV), provides that the States may adopt emission standards [*264] stricter

than the national standards. 11 Amici argue that such standards [**2529] must be adopted and enforced independently

of the EPA-approved state implementation plan. This construction of §§ 110 and 116, however, would not only require

the Administrator to expend considerable time and energy determining whether a state plan was precisely tailored to

meet the federal standards, 12 but would simultaneously require States desiring stricter standards to enact and enforce

two sets of emission standards, one federally approved plan and one stricter state plan. We find no basis in the

Amendments for visiting such wasteful burdens upon the States and the Administrator, and so we reject the argument of

amici.

11 Section 116, 42 U.S.C. § 1857d-1 (1970 ed., Supp. IV), provides:

"Except as otherwise provided in sections 119(c), (e), and (f), 209, 211 (c) (4), and 233 (preempting certain

State regulation of moving sources) nothing in this Act shall preclude or deny the right of any State or political

subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2)

any requirement respecting control or abatement of air pollution; except that if an emission standard or

limitation is in effect under an applicable implementation plan or under section 111 or 112, such State or

political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than

the standard or limitation under such plan or section."

12 This burden would be particularly onerous in view of the facts that Congress gave the Administrator only

four months in which to evaluate each plan submitted, § 110 (a) (2), and that all state plans are submitted at

approximately the same time. § 110 (a) (1).

[***LEdHR4A] [4A]We read the "as may be necessary" requirement of § 110 (a) (2) (B) to demand only that the

implementation plan submitted by the State meet the "minimum conditions" of the Amendments. 13 Train v. NRDC,

421 [*265] U.S., at 71 n. 11. Beyond that if a State makes the legislative determination that it desires a particular air

quality by a certain date and that it is willing to force technology to attain it -- or lose a certain industry if attainment is

not possible -- such a determination is fully consistent with the structure and purpose of the Amendments, and § 110 (a)

(2) (B) provides no basis for the EPA Administrator to object to the determination [***488] on the ground of

infeasibility. 14 See Train v. NRDC, supra, at 79.

13 [***LEdHR4B] [4B] [***LEdHR4C] [4C] Economic and technological factors may be relevant in

determining whether the minimum conditions are met. Thus, the Administrator may consider whether it is

economically or technologically possible for the state plan to require more rapid progress than it does. If he

determines that it is, he may reject the plan as not meeting the requirement that primary standards be achieved

"as expeditiously as practicable" or as failing to provide for attaining secondary standards within "a reasonable

time."

14 In a literal sense, of course, no plan is infeasible since offending sources always have the option of shutting

down if they cannot otherwise comply with the standard of the law. Thus, there is no need for the Administrator

to reject an economically or technologically "infeasible" state plan on the ground that anticipated noncompliance

will cause the State to fall short of the national standards. Sources objecting to such a state scheme must seek

their relief from the State.

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49 L. Ed. 2d 474, ***487; 1976 U.S. LEXIS 108
[***LEdHR1B] [1B]In sum, we have concluded that claims of economic or technological infeasibility may not

be considered by the Administrator in evaluating a state requirement that primary ambient air quality standards be met

in the mandatory three years. And, since we further conclude that the States may submit implementation plans more

stringent than federal law requires and that the Administrator must approve such plans if they meet the minimum

requirements of § 110 (a) (2), it follows that the language of § 110 (a) (2) (B) provides no basis for the Administrator

ever to reject a state implementation plan on the ground that it is economically or technologically infeasible.

Accordingly, a court of appeals reviewing an [*266] approved plan under § 307 (b) (1) cannot set it aside on those

grounds, no matter when they are raised.

III

[***LEdHR5A] [5A]Our conclusion is bolstered by recognition that the Amendments do allow claims of

technological and economic infeasibility to be raised in situations where consideration of such claims will not

substantially interfere with the primary congressional purpose of prompt attainment of the national air quality standards.

Thus, we do not hold that claims of infeasibility are never of relevance in the formulation of an implementation plan or

that sources unable to comply with emission limitations must inevitably be shut down.

Perhaps the most important forum for consideration of claims of economic and technological infeasibility is before

the state agency formulating the implementation [**2530] plan. So long as the national standards are met, the State

may select whatever mix of control devices it desires, Train v. NRDC, supra, at 79, and industries with particular

economic or technological problems may seek special treatment in the plan itself. Cf. 40 CFR §§ 51.2 (b), (d) (1975);

S. Rep. No. 91-1196, p. 36 (1970). Moreover, if the industry is not exempted from, or accommodated by, the original

plan, it may obtain a variance, as petitioner did in this case; and the variance, if granted after notice and a hearing, may

be submitted to the EPA as a revision of the plan. 15 § 110 (a) (3) (A), as amended, 88 Stat. 256, 42 U.S.C. § 1857c-5

(a) (3) (A) (1970 ed., Supp. IV). Lastly, an industry denied an exemption from the implementation plan, or denied a

subsequent variance, may be able to take its claims of [*267] economic or technological infeasibility to the state

courts. See, e.g., Mo. Rev. Stat. § 203.130, (1972); Cal. Health & Safety Code § 39506 (West 1973); [***489] Pa.

Stat. Ann., Tit. 71, § 1710.41 (1962). 16

15 [***LEdHR5B] [5B] A variance approved as a revision of a plan under § 110 (a) (3) (A) will be honored

by the EPA as part of an applicable implementation plan, § 110 (d), a matter of no little import to those granted

variances. See n. 3, supra.

16 Of course, the Amendments do not require the States to formulate their implementation plans with

deference to claims of technological or economic infeasibility, to grant variances on those or any other grounds,

or to provide judicial review of such actions. Consistent with Congress' recognition of the primary role of the

States in controlling air pollution, the Amendments leave all such decisions to the States, which have typically

responded in the manner described in the text. Cf. 40 CFR §§ 51.2 (b), (d) (1975).

While the State has virtually absolute power in allocating emission limitations so long as the national standards are

met, if the state plan cannot meet the national standards, the EPA is implicated in any postponement procedure. There

are two ways that a State can secure relief from the EPA for individual emission sources, or classes of sources, that

cannot meet the national standards. First, if the Governor of the State so requests at the time the original

implementation plan is submitted, and if the State provides reasonable interim controls, the Administrator may allow a

two-year extension of the three-year deadline for attainment of primary air quality standards if he finds, inter alia, that it

is technologically infeasible for the source to comply. § 110 (e). 17 Second, again upon application of the Governor of

the State, the Administrator may allow a one-year postponement of any compliance date in an implementation plan if he

finds, inter alia, that compliance is technologically [*268] infeasible and that "the continued operation of [the emission

source] is essential to national security or to the public health or welfare...." § 110 (f). See Train v. NRDC, 421 U.S., at

81.

17 Section 110(e) itself convincingly demonstrates that the statutory scheme did not contemplate the

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49 L. Ed. 2d 474, ***LEdHR4C; 1976 U.S. LEXIS 108
Administrator's rejecting state implementation plans as infeasible. There would be little purpose in providing

noncomplying sources with § 110 (e)'s limited mechanism for postponing infeasible plans - dependent upon the

cooperation of the State -- if the sources had the option of going to court instead and freeing themselves entirely

of the plan by having it struck down as infeasible.

[***LEdHR6] [6]Even if the State does not intervene on behalf of an emission source, technological and

economic factors may be considered in at least one other circumstance. When a source is found to be in violation of the

state implementation plan, the Administrator may, after a conference with the operator, issue a compliance order rather

than seek civil or criminal enforcement. Such an order must specify a "reasonable" time for compliance with the

relevant standard, taking into account the seriousness of the violation and "any good faith efforts to comply with

applicable requirements." § 113 (a) (4) of the Clean Air Act, as added, 84 Stat. 1686, 42 U.S.C. § 1857c-8 (a) (4).

Claims of technological or economic infeasibility, the Administrator agrees, are relevant to fashioning an appropriate

compliance order under § 113 (a) (4). Brief for Respondent EPA 36 n. 34. 18

18 If he chooses not to seek a compliance order, or if an order is issued and violated, the Administrator may

institute a civil enforcement proceeding. § 113 (b). Additionally, violators of an implementation plan are

subject to criminal penalties under § 113 (c) and citizen enforcement suits under § 304, as added, 84 Stat. 1706,

42 U.S.C. § 1857h-2. Some courts have suggested that in criminal or civil enforcement proceedings the violator

may in certain circumstances raise a defense of economic or technological infeasibility. See Buckeye Power,

Inc. v. EPA, 481 F. 2d 162, 173 (CA6 1973); Indiana & Michigan Electric Co. v. EPA, 509 F. 2d 839, 847 (CA7

1975). We do not address this question here.

[***LEdHR7A] [7A]In [***490] [**2531] short, the Amendments offer ample opportunity for consideration

of claims of technological and economic infeasibility. Always, however, care is taken that consideration of such claims

will not interfere substantially with the primary goal of prompt attainment of the national standards. Allowing such

claims to be raised by [*269] appealing the Administrator's approval of an implementation plan, as petitioner suggests,

would frustrate congressional intent. It would permit a proposed plan to be struck down as infeasible before it is given a

chance to work, even though Congress clearly contemplated that some plans would be infeasible when proposed. And

it would permit the Administrator or a federal court to reject a State's legislative choices in regulating air pollution, even

though Congress plainly left with the States, so long as the national standards were met, the power to determine which

sources would be burdened by regulation and to what extent. Technology forcing is a concept somewhat new to our

national experience and it necessarily entails certain risks. But Congress considered those risks in passing the 1970

Amendments and decided that the dangers posed by uncontrolled air pollution made them worth taking. Petitioner's

theory would render that considered legislative judgment a nullity, and that is a result we refuse to reach. 19

19 [***LEdHR7B] [7B] Petitioner has briefed its contention that the Due Process Clause of the Fifth

Amendment demands that at some time it be afforded the opportunity to raise before a court claims of economic

and technological impossibility. This claim was neither presented to, nor considered by, the Court of Appeals,

and we declined to grant certiorari on the question. 423 U.S. 821 (1975). In any case, we could not resolve

petitioner's claim here, for there has been no showing that a § 307 (b) (1) appeal would be the only opportunity

for petitioner to raise before a court its claims of economic and technological impossibility.

Affirmed.

CONCUR BY: POWELL

CONCUR

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins, concurring.

I join the opinion of the Court because the statutory scheme and the legislative history, thoroughly described in the

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49 L. Ed. 2d 474, ***LEdHR5B; 1976 U.S. LEXIS 108
Court's opinion, demonstrate irrefutably that Congress did not intend to permit the Administrator of [*270] the

Environmental Protection Agency to reject a proposed state implementation plan on the grounds of economic or

technological infeasibility. Congress adopted this position despite its apparent awareness that in some cases existing

sources that cannot meet the standard of the law must be closed down. 1

1 The record is clear beyond question that at least the sponsors and floor leaders of the Clean Air Act intended

that industries unable to comply with approved state implementation plans, whether because of economic or

technological infeasibility, would be "closed down." This is explicit in the Senate Report. S. Rep. No. 91-1196,

p. 3 (1970). It is repeated quite candidly in the statements of various members of the Senate and is described in

detail in the EPA'S brief in this case. Brief for Respondent EPA 20-32. Indeed, remarkable as it may seem, it is

clear from the legislative history that even total technological infeasibility is "irrelevant." See id., at 16, 18-23.

What this means in this case, if the allegations of Union Electric Co. prove to be correct, is that -- in the

interest of public health -- the utility will be ordered to discontinue electric service to the public. As one cannot

believe this would be allowed, I suppose that the State or Federal Government would find some basis for

continuing to operate the company's facilities to serve the public despite noncompliance. But no such

contingency program or authority therefor is found in the statute, and we must decide the case on the record

before us.

The [***491] desire to impose strong incentives on industry to encourage the rapid development and adoption of

pollution control devices is understandable. But it is difficult to believe that Congress would adhere to its absolute

position if faced with the potentially devastating consequences to the public that this case vividly demonstrates.

[**2532] Petitioner is an electric utility supplying power demands in the St. Louis metropolitan area, a large part

of Missouri, and parts of Illinois and Iowa. It alleges that it cannot continue to operate if forced to comply with the

sulfur dioxide restrictions contained in the [*271] Missouri implementation plan approved by the Administrator.

Specifically, petitioner alleges that since the Administrator's approval of the plan, low-sulfur coal has beome too scarce

and expensive to obtain; reliable and satisfactory sulfur dioxide removal equipment that would enable it to comply with

the plan's requirements simply has not been devised; the installation of the unsatisfactory equipment that is available

would cost over $ 500 million, a sum impossible to obtain by bonds that are contingent on approval by regulatory

bodies and public acceptance; and, even if the financing could be obtained, the carrying, operating, and maintenance

costs of over $ 120 million a year would be prohibitive. 2 Petitioner further alleges that recent evidence has disclosed

that sulfur dioxide in the ambient air is not the hazard to public health that it was once thought to be, and that

compliance with the sulfur regulation in the Missouri plan is not necessary to the attainment of national primary and

secondary ambient air standards in the St. Louis area.

2 The burden of these extraordinary capital and operating costs, even if the technological infeasibility problems

could be solved, would fall necessarily on the consumers of electric power.

At the risk of civil and criminal penalties enforceable by both the State and Federal Governments, as well as

possible citizens' suits, 42 U.S.C. §§ 1857c-8, 1857h-2, petitioner is being required either to embark upon the task of

installing allegedly unreliable and prohibitively expensive equipment or to shut down. Yet the present Act permits

neither the Administrator, in approving the state plan, nor the courts, in reviewing that approval under § 307 of the Act,

42 U.S.C. § 1857h-5, even to consider petitioner's allegations of infeasibility.

Environmental concerns, long neglected, merit high priority, and Congress properly has made protection of [*272]

the public health its paramount consideration. See S. Rep. No. 91-1196, pp. 2-3 (1970). But the shutdown of an urban

area's electrical service could have an even more serious impact on the health of the public than that created by a decline

in ambient air quality. The result apparently required by this legislation in its present form could sacrifice [***492] the

well-being of a large metropolitan area through the imposition of inflexible demands that may be technologically

impossible to meet and indeed may no longer even be necessary to the attainment of the goal of clean air.

Page 15

427 U.S. 246, *269; 96 S. Ct. 2518, **2531;

49 L. Ed. 2d 474, ***LEdHR7B; 1976 U.S. LEXIS 108
I believe that Congress, if fully aware of this Draconian possibility, would strike a different balance.

REFERENCES

61 Am Jur 2d, Pollution Control 33, 34

20 Am Jur Pl & Pr Forms (Rev ed), Pollution Control, Forms 1-4

24 Am Jur Proof of Facts 351, Air Pollution

2 Am Jur Trials 293, Locating Scientific and Technical Experts

42 USCS 1857c-5(a)(2), 1857c-8(a)(4), 1857d-1, 1857h-5(b)(1)

US L Ed Digest, Health 1.7

ALR Digests, Health 5

L Ed Index to Annos, Air Pollution

ALR Quick Index, Pollution

Federal Quick Index, Air Pollution; Pollution; Pollution Control

Annotation References:

What issues will the Supreme Court consider, though not, or not properly, raised by the parties. 42 L Ed 2d 946.

Construction and application of pre-emption sections ( 208, 210 (c)(4)) of Clean Air Act (42 USCS 1857f-6a, 1857f-6c

(c)(4)). 18 ALR Fed 971.

Air pollution control: sufficiency of evidence of violation in administrative proceeding terminating in abatement order.

48 ALR3d 795.

Air pollution control: validity of legislation permitting administrative agency to fix permissible standards of pollutant

emission. 48 ALR3d 326.

Page 16

427 U.S. 246, *272; 96 S. Ct. 2518, **2532;

49 L. Ed. 2d 474, ***492; 1976 U.S. LEXIS 108