*1 UNION ELECTRIC CO. v. ENVIRONMENTAL
PROTECTION AGENCY al. et January Argued No. 74-1542. 1976 Decided June *3 J., opinion a unanimous Court. delivered the for Marshall, J., concurring J., opinion, filed a in which Burger, C. Powell, joined, post, p. 269. Ferrell and briefs argued
William H. cause filed petitioner. Attorney argued
Assistant the cause General Taft Agency. respondent Environmental Protection With Bork, Deputy him on the brief were Solicitor General Edmund B. Randolph, Solicitor General and Clark. se, Danforth, Attorney pro John C. of Missouri, General Jr., Summers, W. Dan Assist Nowotny, and Walter Attorneys respondents ant briefs for Dan- General, filed forth et al.* by urging curiae reversal were filed H. Edward
*Briefs amici Joseph Garrett, Dowd for Dunkelberger, Jr., and A. Theodore L. MacRae, Appalachian al.; Power et Cameron F. Co. the opinion delivered of the Mr. Justice Marshall Court.
After the Administrator of Protec- the Environmental Agency (EPA) approves tion state plan may under the Air Clean chal- Act, appeals in a court of within 30 or after 30 lenged days, days newly have run if discovered or informa- available justifies subsequent tion review. must decide We operator whether the regulated emission in a source, petition for EPA-approved review of an filed original 30-day after appeal period, can raise claim it is economically technologically infeasible comply with the plan.
I history provisions We have addressed the Clean Air Amendments of Pub. L. 91-604, De- Stat. in detail Train Natural Resources v. Council 421 U. and will (1975), (NRDC), fense repeat say discussion here. it to Suffice congressional Amendments reflect dissatisfaction with progress pollution existing programs and a determination to id., a stick to the States,” “tak[e] in order to guarantee prompt attainment *4 specified of maintenance quality air standards. The heart of the Amendments is requirement that each State subject implemen- to EPA formulate, approval, plan tation designed primary to achieve national ambi- quality ent air necessary protect standards —those public expeditiously practicable health —“as as but . . . in no years case later than three from the of ap- date Harry Voigt, Henry H. and V. Nickel for the Edison Electric Institute; Raymond and A. Ronald Zumbrun and M. Momboisse Legal for the Pacific Foundation.
Lewis Green C. filed a brief Environment, for Coalition for the Region, St. Louis as urging amicus curiae affirmance. Air (a) (2) (A) Clean plan.” § of such
proval (2) (a) 42 U. C. 1857&-5 as S. added, Stat. Act, of provide for attainment (A). plan must also standards'— quality secondary national ambient a public necessary protect welfare —within those wide given Ibid. Each “reasonable time.” State provides Act in its and the formulating plan, discretion approve” proposed “shall public notice and hear- plan adopted it has been after specified (a) (2).1 if it ing eight and meets criteria. (2), (a) full: (a) (2), provides C. Section U. 1857c-5 shall, “The re- Administrator within four after the date months quired (1), or paragraph approve of for submission under disapprove portion such or The Administrator each thereof. thereof, any approve plan, portion shall if he determines such adopted hearing it after reasonable and and that— was notice “(A) (i) plan implementing primary in the case of a a national quality standard, of provides ambient air it for attainment (subject expeditiously practicable such standard but as as years (e)) date to subsection in no case later than three from the (or any of take of of revision thereof to account (ii) primary standard); plan imple- case a revised of standard, menting secondary quality speci- a national ambient air it secondary be fies a time at standard will reasonable which such attained;
“(B) limitations, schedules, it and timetables includes emission limitations, compliance with such and such other measures necessary to insure attainment and maintenance of such standard, secondary including, to, primary or but not limited land- controls; transportation use
“(C) provision operation includes establishment and systems, devices, methods, procedures appropriate and, (i) monitor, analyze compile, and data on ambient air Administrator; (ii) upon request, make such data available to the “(D) meeting requirements para- procedure, it includes a modification) (4), graph (prior to construction or for review performance which a standard of will the location of new sources to *5 apply;
“(E) adequate provisions intergovernmental co- it for contains April On 30, the Administrator promulgated na- primary secondary tional and standards for six air pol- lutants he found to public have adverse effect on the health and welfare. 40 pt. CFR See (1975). (a) of the Act, added, 84 Stat. U. S. C. (a). § 1857c-3 Included them among was sulfur diox- ide, at issue here. 40 CFR §§ 50.4-50.5 After the promulgation of the national the State of standards, Missouri formulated its plan and sub- mitted it for approval. sulfur Since dioxide levels ex- ceeded national primary standards in only one operation, including necessary measures to insure that emissions of pollutants air any from sources quality region located in air control will not interfere with the pri- attainment or maintenance of such mary secondary or any standard in portion region of such outside any of such quality State or in other air region; control “(F) provides (i) it necessary assurances that the State will adequate have personnel, funding, authority carry and out such implementation plan, (ii) requirements equipment for installation of by operators stationary owners or sources to monitor emissions sources, (iii) from such periodic reports for on the nature and emissions; (iv) amounts of reports such that such shall be correlated agency any the State with emission limitations or standards pursuant Act, reports established to this which shall be available public inspection; (v) authority reasonable times for and for comparable adequate contingency to that plans in section implement authority; such “(G) provides, necessary it practicable, to the extent periodic inspection and testing of com- motor vehicles enforce pliance applicable with standards; emission
“(H) provides revision, public hearings, after of such (i) from time to time as to take account of re- secondary primary visions of such national or ambient availability standard of improved expeditious or the or more meth- achieving secondary standard; (ii) ods or or when- ever the Administrator finds the basis of information available to substantially inadequate him that the to achieve the national quality primary secondary ambient air standard which it implements.”
252 Metropolitan St. quality regions five air
State’s —the (1975)- 40 CFR 52.1321 region, § Louis Interstate —the reg- strategy control and on a plan Missouri concentrated The plan’s emissions in that area. ulations to lower but the State once, effective at emission limitations were particular to authority grant variances retained to Rev. immediately comply.2 Mo. that could not sources approved (1972). The Administrator §203.110 Stat. 52.1320 et 40 CFR May § on 1972. See seq. (1975). utility company servicing
Petitioner
is an electric
Missouri,
large portions
metropolitan
Louis
area,
St.
Its
coal-fired
and Iowa.
three
Illinois
parts
metropolitan
Louis area
plants in
St.
generating
in the Missouri
subject to
sulfur dioxide restrictions
review
plan. Petitioner did not seek
plan within 30
approval of the
Administrator’s
of the
(b)(1)
as it was entitled
do under
days,
(b)
C. 1857h-5
Stat.
U. S.
added,
Act,
appropriate
state and
(1),
applied
but rather
for
from
emission limita-
county agencies
variances
plants.
tions
received one-
affecting its three
Petitioner
year
upon reapplica-
which could be extended
variances,
petitioner’s
tion.
three plants
The variances on two of
expired
petitioner
applying
had
was
for
extensions
May
peti-
on
when,
the Administrator notified
31, 1974,
tioner that sulfur dioxide
from
vio-
plants
emissions
its
lated the emission limitations contained in the Missouri
plan.3
Shortly
Reg.
(1975).
See
Fed.
there-
designed
secondary
was
attain
region
Metropolitan
Louis
St.
Interstate
by July
1975. See
CFR 52.1332
3 The notice included
plants,
though
all three
even
the variance
yet
expired,
one of them had not
because the one variance
still in effect
had
been
to the EPA
submitted
as a
revision
petitioner
petition
after
of Appeals
filed a
in the Court
for
Eighth
Circuit
review of the Administrator’s
implementation plan.
Missouri
(b)(1)
petitions
Section 307
allows
review to
*7
appropriate
appeals
court of
more
30
filed
than
days after the
implemen-
Administrator’s
of an
plan only if
petition
the
solely
tation
"based
grounds
day.”
after
arising-
30th
Petitioner
alia,
claimed to meet
requirement by
this
inter
asserting,
that various economic and technological difficulties had
days
arisen more
30
than
after
ap-
the Administrator’s
proval and that
these
compliance
difficulties made
with
the emission
impossible.4
limitations
Ap-
of
The Court
(a) (3) (A),
under
110
amended,
256,
42
88
U.
C.
Stat.
(a)(3)(A)
(1970
1857c-5
ed., Supp. IV),
and therefore was not
part
applicable
the
implementation
infra,
of
plan.
15,
See n.
4
presence
Petitioner also claimed that the
the
of sulfur dioxide in
ambient air
longer
regarded
should no
as a health hazard and
compliance
implementation
that
with the
Missouri
was not
necessary
secondary
for attainment of
quality
national
standards. The
of Appeals
Court
found that
these claims were
jurisdiction
not sufficient
(b)(1).
to establish
under §307
challenge
held
validity
regulating
court
that
to the
of
properly
dioxide
not
alleged
sulfur
was
before it because the
new
previously
presented
information had not
been
to the Administrator
action,
procedure
necessary
for
a
the court held was
for the exercise
jurisdiction.
(1975).
Oljato
of its
515 F. 2d
See also
Chapter
Navajo
Train,
Tribe
App.
v.
S.U.
D. C.
(1975).
any
425 U. S. 987 (1976); Duquesne Light
EPA,
Co. v.
(CA3
F. 2d 1186
1975), cert. pending, No. 75-736. On
the other hand,
Eighth
support
Circuit found
for its
position in the decisions of several other Circuits. South
EPA,
Terminal Corp. v.
646,
(CA1
F. 2d
675-676
1974);
EPA,
Texas
(CA5
v.
499 F.
1974);
2d
EPA,
Natural Resources
Council
2d
v.
507 F.
Defense
914 (CA9 1974).
Michigan
&
See also Indiana
EPA,
Electric Co. v.
509 F.
(CA7 1975).
2d
843-845
Buckeye Power,
Cf.
EPA,
(CA6
Inc. v.
II A petitioner’s We outset suggestion that a claim of economic or technological infeasibility upon petition a considered in- review based new formation and filed more than days after plan even if such claim a could by be considered approving a court in reviewing challenged within the original 30-day appeal period. In pertinent part § 307 (b)(1) provides: petition
“A for review of the Administrator’s action *9 in approving or promulgating any implementation plan under may section 110 only .. . be in filed the United States Court of Appeals appropriate for the circuit. Any petition such shall filed within 30 days from the date of such promulgation or ap- or after such proval, date if petition such is based solely on grounds arising day.” after such 30th Regardless of petition when a for review is filed under court (b)(1), is i limited to reviewing “the Ad- implementa- approving . . . in [the] action ministrator’s al- “grounds” if new Accordingly, . tion . . been known they had they must be such that, leged, for Administrator presented to the was the time of discretion an abuse it have been would approval, hold other- To approve plan. to responsibility a substantial would be to transfer wise Administrator Air Act from the Clean administering courts. to federal agencies and the state B pe of when the reviewing regardless Since court — of eco claims may is consider tition for review filed— infeasibility only if Admin technological nomic approving or re istrator consider claims we must address jecting implementation plan, scope responsibil of the Administrator’s ourselves no ity. position Administrator’s is that he has The power implementation a state whatsoever economically on the ground technologically previously great and we have accorded defer infeasible, ence to the Administrator’s of the Clean construction NRDC, Act. See Train Air v. at 75. After U. S., surveying provisions the relevant Air Clean of 1970 and legislative Amendments their we history, agree Congress intended claims economic and infeasibility to be wholly to the foreign Administrator’s consideration of a state plan.
As previously we have Amend- recognized, ments Air remedy to the Clean Act were a drastic perceived what was as a serious and uncheck- otherwise problem pollution. able of air place Amendments primary responsibility formulating con- pollution trol strategies States, subject on the but nonetheless
257 compliance to minimum requirements. the States strict requirements These of "technology-forcing are charac- ter,” NRDC, Train v. supra, 91, expressly at and force designed regulated develop sources to pollution might control devices that at appear the time to be economically or technologically infeasible. approach
This is apparent on the of (a)(2). face 110 provision The implemen- sets out eight criteria tation must provides and cri- these satisfy, teria are met and if the adopted was after reason- able notice and ap- Administrator "shall hearing, prove” proposed plan. mandatory "shall” quite makes it clear that is not to be concerned with factors other than those Train specified, NRDC, supra, v. 71 11, eight n. of none appears permit factors technologi- consideration of cal infeasibility.5 or economic if a basis Nonetheless, is to be found for allowing the Administrator to con- sider such it must among claims, eight criteria, it is and so here that the argument is focused.
It is suggested that of consideration claims of tech- nological and economic infeasibility required by first criterion —that expeditiously
be met “as practicable as in no case but... years later than three .” . . and that secondary air 5 supra. See Comparison n. (2) the eight (a) criteria of 110 provisions with other of-the Amendments bolsters this conclusion. Congress Where intended the Administrator to be concerned about economic infeasibility, expressly provided. so Thus, (e), (f), (a)(1), (a), (c)(2)(A), §§110 (b) expressly permit consideration, g., Amendments all e. requisite “of technology, giving appropriate consideration the cost compliance.” (b), added, Stat. §231 (b). U. S. C. (e), 1857f-9 See also 42 U. C.S. 1857c-5 1857c- §§ (f), (a) (1), 1857c-6 (a), (c) (2) (A). 1857f-1 1857f-6c Section (2) (a) contains no language. *11 time.” within a “reasonable be met standards quality “prac- is is that what argument (a)(2)(A). §110 without be determined cannot ticable” or “reasonable” This proposed possible. is what is assessing whether analysis. does survive argument three-year deadline (a)(2)(A)’s Section is to the quality central primary air standards achieving as both the lan- regulatory scheme Amendments’ and, history requirement guage legislative no make it leaves room claims clear, de- infeasibility. congressional economic The 1970 on the centered on whether technol- bate Amendments framing ogy forcing was and desirable protect sufficient to attaining public standards later termed standards. health, quite The House version of Amendments was mod- only requiring erate in that health-related approach, standards be met “within a reasonable time.” H. R. (c)(1)(C)(i) (1970). 91st 2d Sess., § Cong., bill, flatly The Senate on the other required hand, that, possible or not, health-related standards be met “within years.” three 91st 111 (a)(2) 2d Cong., Sess., (A) (1970).
The Senate’s stiff requirement was intended fore- close the claims of emission sources that would be economically or technologically for them to infeasible achieve emission protect limitations pub- sufficient lic specified health within the time. As Senator Muskie, manager explained Senate to his bill, chamber: “ ‘The first responsibility Congress is not the making of technological or economic judgments— or even to be limited what or appears to be technologically or economically feasible. Our re- sponsibility tois establish what the public interest requires protect persons. the health of This people mean that will be industries asked to do ” impossible present what to be seems at the time.5 116 Cong. Rec. 32901-32902 id., (remarks See also at 32919 of Sen. Cooper); (remarks of Prouty). position Sen. This reflected that *12 of the Senate committee:
“In the Committee considerable con- discussions, expressed cern was regarding concept the use of the feasibility of technical as the basis ambient air standards. The Committee 1) determined that the people health of important is more ques- than the tion of early whether the achievement of ambient quality air protective of health techni- is cally feasible; 2) growth the of pollution load many in areas, even with application of available would still technology, be deleterious to public health. the
“Therefore, Committee determined that exist- ing pollutants sources of either the should meet standard of the law be closed Rep. down ....” No. pp. 2-3 91-1196,
The Conference Committee the en- and, ultimately, Congress accepted tire three-year Senate’s mandate for the primary achievement of standards, import and the clear of that is decision that the Ad- ministrator approve must a plan provides that for attain- ment of the primary years standards in three even if appear attainment does not In feasible. rejecting House’s version of reasonableness, however, conferees strengthened the Senate version. The Conference Com- mittee made clear that the procrastinate States could not until approached. deadline Rather, primary years standards had to be met in less pos- than three they sible; to met expeditiously had “as practica- as room there is for (a)(2)(A). Whatever ble.” infeasibility in attainment considering claims of in phrase, is, this which standards must lie primary only evaluating those course, relevant to achieve the standard attempt plans years. than three less pro- calls for such a state argued that when
It is available rapidly than economics ceeding more rejected must be allow, technology appear reading of correct this is a “practicable.” Whether expe- that section’s “as (2) depends how (a) (A) phrase characterized. practicable” ditiously as only (2) sets (a) (A) position is Administrator’s may exceed in their minimum standard that States an infeasible power has no so that he discretion, require- the minimum federal surpasses *13 in to engage reflects a state decision plan ments —a that more proceed to technology forcing on its own and other hand, the practicable. than is On expeditiously that position argue its petitioner supporting and amici the mandatory standard that (a) (2) (A) 110 sets a Ad- the and conclude precisely, must meet States well reject being for too strict as may plan a ministrator arguments supporting being too lax. as Since theory made to show that this are also achieving more reject plan provides must a we secondary quality require, air standards than in to outline question this order defer consideration of secondary development and content standards (a)(2)(A). provision §of to those Secondary standards, subject legis- were to far less protect public welfare, primary standards. The House debate than the lative version of the Amendments treated welfare-related together with health-related standards standards, both to be required met "within a reasonable time.” R. 91st 2d (c) §§ H. (e)(1), Cong., Sess., (l)(C)(i) on Senate the other bill, hand, treated health- and separately welfare-related standards and did not require that welfare-related standards be met any particular in time all, S. 91st 2d Sess., Cong., §§ 110 111 (a)(2)(A) although (a)(3), (b), (1970), Report Committee expressed they the desire that rapidly “as possible.” met Rep. No. 91-1196, p. (1970). The final Amendments also separated welfare-related standards from health-related standards, them secondary labeled air quality standards, adopted the House’s requirement they be met within a (b), (a)(2)(A). “reasonable time.” §§ Thus, technology forcing expressly required is not achieving protect public standards to welfare.6
It
necessarily
does not
Ad-
follow, however, that
ministrator may consider
impossibility
claims of
in as-
a state
sessing
for achieving
standards.
secondary
plans
As with
designed
achieve
less than
scope
three
of the Administrator’s
years,
power
depends
it-
whether the State
self
decide to engage in technology forcing and
adopt stringent
more
than federal law demands.7
Amici Appalachian
et
Power Co.
al. argue that
Amendments
give
do not
such broad
power
the States.
appears
The Administrator
to take
position
guide
this
in his
*14
attaining secondary
lines for
(b)
standards.
See 40 CFR 51.13
§
7
question
A different
presented
would be
if the Administrator
pursuant
110(c).
drafted the
Cf. District
himself
§
of
Train,
Columbia v.
App.
(1975);
U.
S.
C.
F. 2d
D.
Corp.
South Terminal
EPA,
(CA1
1974).
v.
They that the States claim law than federal implementation plans stringent more by (a) (2)’s criterion —that demands second necessary” may devices “as contain such control secondary quality stand primary to achieve the is that The contention §110(a)(2)(B).8 ards. “necessary” for attainment is not overly restrictive rejected must be the national standards and so Administrator.9 theory of amici lies support
The for this principal the House and Senate versions the fact that while the States expressly provided both (a)(2) §110 plans that could submit for the Administrator’s see required, stricter than the national standards were (c) (1970); 2d Cong., Sess., H. R. 91st sec- (a)(1) (1970), 2d Cong., 91st Sess., Amici express language. tion as enacted contains no such decided Committee must have argue that the Conference simply pre- require implementation plans state —and argument cisely meet the national standards. —to lacks much. A Committee proves too Conference amici about changes matters power to make substantive 1, supra. See n. reject state only must argue that Amici not rapidly standards more plans attempt primary to attain the secondary “rea “practicable” in less than a than or time,” also that he must sonable but quantitative than those plans that for more emission controls call secondary standards. to meet the national argument nothing economic deciding This adds whether claims of quantitatively stiffer infeasibility If can be raised. rejected, barred, containing plans all them must be standards are any below, case, In as make clear whether infeasible or not. we standards, adopt rigorous and the States such more emission plans containing minimum approve Administrator them if the must requirements federal are satisfied.
which both agree. Houses (a) § U. S. 190c (Senate C. Conference Reports); Rule XXVIII of the (3), Rules House of Representatives, and Jefferson’s 546, Manual, H. R. Doc. No. 92d 384, Cong., 2d 270-271 Sess., 526, (1972); Operators’ National Coal v. Kleppe, Assn. U. 388, 401 n. Here the Conference Re- port expressly that
264 argue Amici that national standards.11
stricter than the independ- adopted must be and enforced standards plan. ently EPA-approved state not 110 would 116, however, construction of and §§ This considerable expend only require plan a was determining whether state energy time and but standards,12 to meet the federal precisely tailored simultaneously require desiring States stricter would enforce sets emission and two of enact federally standards, approved plan and one stricter one Amendments We find no basis plan. upon the and such wasteful burdens States visiting Administrator, argument of amici. and so we may necessary” requirement the “as be
We read only implementa- 110 to demand (a) (2) (B) § by the “minimum tion the State meet submitted NRDC, 421 Amendments.13 Train v. conditions” (1970 IV), ed., Supp. 116, 42 U. S. C. 1857d-1 Section provides: provided (c), (e),
“Except (f), in sections 119 and as otherwise regulation of (c)(4), (preempting certain State moving preclude deny or sources) nothing in this Act shall any adopt or right political or subdivision thereof State any (1) respecting air or limitation emissions of enforce standard (2) requirement pollutants any respecting control or abatement or except that if an standard or limitation pollution; of air emission applicable implementation plan is under an or under in effect may political or section 111 or such State subdivision any adopt or emission standard or limitation which enforce stringent or limitation under such less than standard or section.” particularly This of the facts burden would onerous view Congress only gave the Administrator four months in which to (a) (2), submitted, plans that all state evaluate each (a)(1). approximately at the same time. are submitted §110 may technological factors be relevant in deter Economic and mining Thus, the minimum are met. the Admin whether conditions economically technologically it is istrator consider whether Beyond U. n. 11. S., a that, State makes the legislative particular determination that it desires a certain date and it is willing to force technology to attain it—or industry lose a certain if at possible tainment is not is fully determination —such consistent with the purpose structure and of the Amend ments, (a) (2) (B) provides no for the basis *17 EPA object Administrator to to on the determination the ground infeasibility.14 of NRDC, See Train v. supra, at 79.
In sum, have we concluded that claims of economic or technological infeasibility may not the be considered Administrator in evaluating a state that requirement primary ambient quality in the standards be met mandatory years. three since And, we further conclude that may the implementation States submit plans more stringent requires than federal law the Admin- that approve plans they istrator must such if mini- meet the mum of requirements 110 (a)(2), it that the follows language of (a)(2)(B) provides §110 no basis the reject Administrator ever to implementation state plan ground on the it economically that is or technologically infeasible. a court of Accordingly, appeals reviewing an possible require plan rapid progress for the state to more than is, may reject it does. If he plan determines that he as requirement meeting the that standards be achieved expeditiously provide “as practicable” failing as or attaining secondary standards within “a reasonable time.” sense, course, In a of no offending literal is infeasible since always option shutting they sources have the of down cannot Thus, comply otherwise with standard of the there no law. economically technologi need for the Administrator to or cally ground on anticipated “infeasible” state non compliance will cause the State to fall short of the stand national objecting ards. Sources a state scheme must seek their relief from the State. set it aside (b) (1) cannot under approved they raised. are no when matter grounds, those Ill by recognition conclusion is bolstered Our and eco- of claims Amendments do allow where con- infeasibility in situations to be raised nomic substantially interfere will not of such claims sideration of at- prompt purpose primary congressional with Thus, standards. of national air tainment infeasibility never do not hold that claims we implementation plan of an relevance in the formulation limita- emission comply sources unable with inevitably be shut down. tions must Perhaps, important the most forum for consideration infeasibility is economic and technological claims of agency formulating before plan. as the national standards are long met, So mix of it de- State select whatever control devices *18 NRDC, supra, Train v. with sires, at industries particular technological problems may or economic seek plan in special §§51.2 treatment the itself. Cf. CFR (d) (1975); Rep. p. 36 (b), 91-1196, No. S. industry if Moreover, exempted the is not or ac- from, original plan, may commodated the by, obtain var- iance, petitioner as did in this if case; variance, and the may granted hearing, after notice and a be submitted to plan.15 (3) the EPA a revision of 110 (a) § as (A), (3) amended, (a) (A) U. C. 1857c-5 Stat. (1970 IY). industry an an ed., Supp. Lastly, denied exemption implementation plan, from the or denied a subsequent may be its variance, able take claims (3) (a) A approved variance as a revision of a under 110§ (A) part applicable implemen will honored EPA as of an (d), granted plan, import a matter of little tation no to those 3, supra. n. variances. See infeasibility technological economic or to the state courts. g., (1972); e. Cal. Health See, §203.130 Rev. Mo. Stat. Safety Tit. (West 1973); Ann., & Pa. Code Stat. (1962).16 § 1710.41 power in allo- virtually
While the State has absolute stand- cating long emission limitations so as the national ards if the state cannot meet the national met, implicated any the EPA is standards, postponement procedure. ways There are two State secure can relief from EPA for or emission sources, individual classes that cannot meet national stand- sources, ards. if the requests Governor the State so First, implementation time the original submitted, if provides controls, State reasonable interim may two-year allow a extension of the three-year deadline for qual- attainment of air primary ity inter standards if he alia, that it is technologi- finds, cally comply. infeasible the source to (e).17 110§ upon again application of the Governor of the Second, State, one-year Administrator allow a postpone- any compliance ment of date in implementation plan alia, he inter finds, that compliance is technologically course, Of require the Amendments do not the States to for mulate their plans with deference to claims of infeasibility, grant or economic variances on those any grounds, provide judicial other or to review of such actions. Congress’ Consistent recognition with role of the controlling pollution, States in Amendments leave all States, decisions to typically responded which have the manner described in (b), (d) (1975). the text. Cf. 40 CFR §§51.2 (e) Section 110 convincingly itself demonstrates that the statu *19 tory scheme contemplate did not the rejecting Administrator’s implementation plans purpose as infeasible. There be little would providing (e)’s in noncomplying sources with 110 limited mecha § postponing coopera nism for plans dependent upon infeasible — option tion of the had going State —if sources to court freeing entirely plan by having instead and themselves of the struck down as infeasible.
268 operation of continued [the “the and that
infeasible or to security national to is essential emission source] Train (f). 110 See . § or welfare . . public health 421 U. at 81. NRDC, S., v. an behalf does not intervene
Even the State may and economic factors technological source, emission When one other circumstance. considered in at least imple- the state found to be violation of a source is a confer- after the Administrator may, mentation plan, compliance order rather ence with issue operator, order or criminal enforcement. Such an than seek civil compliance time for with specify a “reasonable” must into the serious- taking account standard, relevant “any faith efforts to com- good ness of violation (a)(4) 113 ply applicable requirements.” § with C. added, Clean Air as 84 Stat. U. S. Act, 1686, (a) (4). technological § 1857o-8 Claims of or economic the Administrator are relevant agrees, infeasibility, appropriate fashioning compliance § order under (a) (4). Brief for EPA Respondent 34.18 n.
In ample opportunity the Amendments offer short, technological consideration of claims of in- and economic feasibility. care is taken con- Always, however, substantially of such claims sideration will not interfere primary goal prompt with of the na- attainment standards. Allowing tional claims be raised compliance order, If he chooses not seek a if an order or violated, may is issued and institute civil en (b). proceeding. Additionally, forcement im violators of an § plementation subject (c) penalties to criminal under 1706, added, and citizen enforcement suits under 84 Stat. suggested U. C. 1857h-2. Some courts have criminal proceedings civil enforcement in certain cir violator infeasibility. cumstances raise a defense of economic or Buckeye 1973); Power, EPA, (CA6 Inc. v. 481 F. See 2d (CA7 Michigan EPA, 2d & Electric Co. v. 509 F. Indiana 1975). question here. do not address this We *20 imple- Administrator’s of an appealing would frustrate plan, petitioner mentation suggests, It permit proposed plan intent. would congressional to be struck down it is given as infeasible before chance clearly to contemplated even work, though Congress plans proposed. be infeasible And it some would when permit would to the Administrator or a federal court reject a choices legislative regulating pol- State’s though Congress plainly even left with the lution, States, so as the long power national standards were to met, which sources by regula- determine would burdened tion and to what extent. Technology is a con- forcing cept somewhat new our national experience and it necessarily entails certain risks. But Congress consid- those risks in passing ered the 1970 Amendments and dangers posed decided pol- uncontrolled air lution made them worth taking. theory Petitioner’s would render legislative that considered judgment a nul- and that is a result lity, we refuse reach.19
Affirmed. Mr. Justice with whom The Chief Justice Powell, concurring. joins,
I join opinion of the Court statutory because the scheme and the legislative history, thoroughly described Court’s opinion, demonstrate irrefutably Congress did not intend permit Administrator
19Petitioner has briefed its contention that the Due Process Clause
of the Fifth Amendment demands that at some time it be afforded
opportunity
to raise before a court claims of economic and tech
nological
impossibility.
presented
This claim
to,
was neither
nor
by,
considered
Appeals,
Court of
grant
we declined to
question.
certiorari on the
any
the Environmental of eco- grounds on the posed implementation state adopted infeasibility. Congress nomic or in some awareness that apparent its position despite this of the standard cannot meet existing sources that cases the must be closed down.1 law industry to on strong to incentives impose
The desire pol- of adoption development and encourage rapid the But is dif- understandable. lution control devices is its to abso- Congress ficult to believe that would adhere devastating position potentially if faced with the lute vividly to consequences public that this case demonstrates. utility power de- is an electric supplying
Petitioner large part in metropolitan area, mands Louis St. parts alleges of Illinois It and Iowa. Missouri, operate comply that it cannot continue to if forced to with the sulfur dioxide restrictions contained in the beyond question is sponsors
1 The record clear at that least and floor leaders of the Air Act un Clean intended that industries comply approved able to plans, with whether technological infeasibility, because economic or would be “closed explicit Report. Rep. in down.” is the Senate No. 91- This candidly p. repeated quite It is in the state ments of in in various members of the Senate and is described detail in Respondent EPA’s brief this case. Brief for EPA 20-32. Indeed, may seem, legislative remarkable as it it is clear from the history technological infeasibility that even total is “irrelevant.” See id,., 18-23. ease, allegations means this this of Union Elec-
What prove correct, public tric Co. to is that —in the interest utility health —the be ordered to discontinue electric to will service allowed, I public. suppose As one cannot believe this would be or Federal would con- that the State Government find some basis for tinuing operate company’s public despite to facilities serve the authority noncompliance. contingency no program But statute, is and must decide the therefor found we case on the record before us. by the Admin- implementation plan approved
Missouri since petitioner alleges istrator. Specifically, coal has Administrator’s of the low-sulfur plan, obtain; rehable and expensive become too scarce and satisfactory equipment sulfur dioxide removal plan’s it to comply requirements would enable with the simply devised; has not been the installation unsatisfactory equipment would cost available impossible $500 over sum obtain bonds million, that are contingent approval by regulatory bodies *22 public if and even could and, financing acceptance; obtained, the carrying, operating, and maintenance costs of year $120 over million a prohibitive.2 would be further Petitioner recent alleges that has dis- evidence closed that sulfur in dioxide the ambient air is not public hazard to health that it was once thought be, compliance and that with the sulfur in the regulation Missouri plan necessary is not to the attainment of national and secondary ambient air standards in the St. Louis area.
At the risk of civil penalties and criminal enforceable by both the and State Federal Governments, as well as possible citizens’ 42 U. suits, §§ S. C. 1857c-8, 1857h-2, petitioner is being required either upon to embark task of installing allegedly unreliable prohibitively expensive equipment or to shut down. present Yet the permits Act neither the in approving Administrator, nor the plan, reviewing courts, under 307§ of the 42 U. S. C. § Act, even 1857h-5, petitioner’s consider allegations of infeasibility. Environmental long concerns, merit high neglected, priority, Congress properly protection has made of 2The burden of these extraordinary capital operating costs, even if infeasibility problems solved, could be would fall necessarily on the consumers power. of.electric paramount public health its consideration. See S. But Rep. pp. 2-3 the shutdown 91-1196, No. of an urban area’s could have an even electrical service of impact public more serious the health than by a quality. that created ambient air decline apparently required by pres- result this in its legislation form ent could sacrifice the metro- well-being large politan through imposition area demands inflexible be technologically impossible to meet and in- may no longer deed even be to the attainment goal of clean air. I Congress, fully believe that aware this Draconian would strike a different balance. possibility, notes both the and Senate House bills would allow plans States submit stringent more than the national standards and no demand, sug- offers gestion that the Conference bill change intended to that result, even if it could. Rep. 91-1783, H. R. Conf. No. p. 45 (1970). And while the language (a) final of 110§ may (2)(B) explicit be less than originally the versions approved by the Senate, House and the the most nat- ural reading may of the necessary” phrase “as context is simply that the Administrator must assure minimal, “necessary,” requirements met, that he detect and any state more de- manding than federal law requires.10 reading This is further supported by practical consid- erations. Section 116 of added, the Clean Air Act, as Stat. U. (1970 IV), S. C. 1857d-l ed., Supp. provides may adopt States emission standards 10Subsequent legislation Congress’ confirms that original this was response intent. In shortages to the Congress fuel of late Energy enacted the Supply and Environmental Coordination Act of 93-319, Pub. L. 88 Stat. 246. The Act allows the Administra notify tor to plans review States fuel-burning stationary their restrictions sources be relaxed interfering timely without with attainment maintenance of (3) (B) (1970 national standards. S. C. U. 1857c-5 ed., IV). Supp. restrictions, The decision whether to how relax ever, congressional is left to the The Act States. shows awareness federally approved implementation fact plans may be stricter than for attainment of national standards.