U.S. Supreme Court Union Elec. Co. v. EPA, 427
U.S. 246 (1976) Union Electric Co. v. Environmental
Protection Agency No. 74-1542 Argued January 21,
1976 Decided June 25, 1976 427
U.S. 246 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT 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) 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 Page 427 U. S. 247 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. 427 U. S.
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. 427 U. S.
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. 427 U. S.
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. 427 U. S.
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 Page 427 U. S. 248 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 sate implementation plan on
the ground that it is economically or technologically infeasible.
Pp. 427 U. S.
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 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. 427 U. S.
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. 427 U. S.
269 . Page 427 U. S. 249 MR. JUSTICE MARSHALL delivered the opinion of the Court.

															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 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 421 U. S. 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 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 Page 427 U. S. 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 standard 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). [ Footnote 1 ] Page 427 U. S. 251 On 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 Page 427 U. S. 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.
[ Footnote 2 ] Mo.Rev.Stat. §
203.110 (1972). The Administrator approved the plan on May 31,
1972. See 40 CFR § 52.1320 et seq. (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(h)(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. [ Footnote 3 ] See 40 Fed.Reg. 3566 (1975). Shortly
thereafter, Page 427 U. S. 253 petitioner fled a petition in the Court of Appeals for the
Eighth Circuit for review of the Administrator's 1972 approval of
the Missouri implementation plan.

															Section 307(b)(1) allows petitions for review to be filed in an
appropriate court of appals 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. [ Footnote
4 ] The Court of Appeals Page 427 U. S. 254 ordered 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.

															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 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, Page 427 U. S. 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
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 Page 427 U. 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. 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. 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 421 U. S. 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 Page 427 U. S. 257 the States to strict minimum compliance requirements. These
requirements are of a "technology-forcing character," Train v.
NRDC, supra at 421 U. S. 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.

															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 421 U. S. 71 n.
11, 421 U. S. 79 ,
and none of the eight factors appears to permit consideration of
technological or economic infeasibility. [ Footnote 5 ] Nonetheless, if a basis is to be found for
allowing the Administrator to consider such claims, it must be
among the eight criteria, and so it is here that the argument is
focused.

															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 Page 427 U. S. 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 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 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 judgment 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 Page 427 U. S. 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
as practicable." Page 427 U. S. 260 § 110(a)(2)(A). Whatever room there is for considering claims of
infeasibility in the attainment of primary standards must lie in
this phase, which is, 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 Page 427 U. S. 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 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. [ Footnote 6 ]

															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 plan
more stringent than federal law demands. [ Footnote 7 ] Amici Appalachian Power Co. et al. argue that
the Amendments do not give such broad power to the States. Page 427 U. S. 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). [ Footnote 8 ] The contention is that an overly restrictive
plan is not "necessary" for attainment of the national standards,
and so must be rejected by the Administrator. [ Footnote 9 ]

															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 Page 427 U. S. 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 , 423 U. S. 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 any state plan more demanding than federal law requires.
[ Footnote 10 ]

															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 Page 427 U. S. 264 stricter than the national standards. [ Footnote 11 ] Amici argue that such standards
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, [ Footnote 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. 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. [ Footnote 13 ] Train v. NRDC, 421 Page 427 U. S. 265 U.S. at 421 U. S. 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 on the ground of infeasibility.
[ Footnote 14 ] See Train
v. NRDC, supra at 421 U. S.
79 .

															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 Page 427 U. S. 266 approved plan under § 307(b)(1) cannot set it aside on those
grounds, no matter when they are raised. III 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 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 421 U. S. 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. [ Footnote 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 Page 427 U. S. 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); Pa.Stat.Ann., Tit. 71, § 1710.41
(1962). [ Footnote 16 ]

															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). [ Footnote
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 Page 427 U. S. 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 421 U. S.
81 .

															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. .
§ 1857c8(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. [ Footnote 18 ]

															In 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 Page 427 U. S. 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.
[ Footnote 19 ] Affirmed. [ Footnote 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
specifics 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."

															[ Footnote 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).

															[ Footnote 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 [ Footnote 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 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).

															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 427 U. S.
261 -266.

															[ Footnote 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.

															[ Footnote 6 ]

															The Administrator appears to take this position in his
guidelines for attaining secondary standards. See 40 CFR §
51.13(b) (1975).

															[ Footnote 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.

															[ Footnote 8 ] See n 1, supra. [ Footnote 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.

															[ Footnote 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.

															[ Footnote 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."

															[ Footnote 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).

															[ Footnote 13 ]

															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."

															[ Footnote 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.

															[ Footnote 15 ]

															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. [ Footnote 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).

															[ Footnote 17 ]

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

															[ Footnote 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(e) 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.

															[ Footnote 19 ]

															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.

															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 Court's
opinion, demonstrate irrefutably that Congress did not intend to
permit the Administrator of Page 427 U. S. 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. [ Footnote 2/1 ]

															The 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.

															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 Page 427 U. S. 271 Missouri implementation plan approved by the Administrator.
Specifically, petitioner alleges that, since the Administrator's
approval of the plan, low-sulfur coal has become 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. [ Footnote 2/2 ]
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.

															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 Page 427 U. S. 272 the public health its paramount consideration. See S.Rep. No. 91-1196, pp. 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 the wellbeing 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.

															I believe that Congress, if fully aware of this Draconian
possibility, would strike a different balance.

															[ Footnote 2/1 ]

															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
202. 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.

															[ Footnote 2/2 ]

															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.

Summary:
In *Union Electric Co. v. EPA*, the Supreme Court considered a challenge to the Clean Air Act's implementation plan for Missouri, which required companies to meet specific sulfur dioxide emission restrictions. The case revolved around Section 110(a) of the Clean Air Act and the ability of the Environmental Protection Agency (EPA) to approve state implementation plans.

The Court decided:
1. Regardless of when a petition for review is filed under the Clean Air Act's provisions, a court of appeals has jurisdiction to review the EPA's approval of a state implementation plan only if the petition is filed within 30 days of that approval.
2. The infeasibility of complying with the plan's requirements due to economic or technological constraints is not a valid reason for a court to overturn the EPA's approval of the plan.

Justice Rehnquist, in his concurrence, expressed concern about the potentially drastic consequences of the Clean Air Act's inflexible demands, which could sacrifice the well-being of metropolitan areas and lead to shutdowns of essential services. He suggested that Congress, if fully aware of these possibilities, would likely strike a different balance.