427 U.S. 246 (1976), 74-1542, Union Electric Co. v. Environmental Protection Agency

• Docket Nº: No. 74-1542
• Citation: 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474
• Party Name: Union Electric Co. v. Environmental Protection Agency
• Case Date: June 25, 1976
• Court: United States Supreme Court

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427 U.S. 246 (1976)

96 S.Ct. 2518, 49 L.Ed.2d 474

Union Electric Co.

v.

Environmental Protection Agency

No. 74-1542

United States Supreme Court

June 25, 1976

Argued January 21, 1976

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, [96 S.Ct. 2521] holding that only

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matters which, if known to the Administrator at the time he approved the state plan, would justify setting aside the approval are properly reviewable after the 30-day period, and that, since claims of economic and technological infeasibility, such as petitioner was asserting here, could not properly justify the Administrator's rejection of a plan, such claims could not serve at any time as the basis for a court's overturning a plan.

Held:

1. Since, regardless of when a petition for review is filed under § 307(b)(1), the court is limited to reviewing "the Administrator's action in approving . . . [the] implementation plan," if new "grounds" are alleged, they must be such that, had they been known at the time the plan was presented to the Administrator for approval, it would have been an abuse of discretion for him to approve the plan. A contrary holding would shift a substantial responsibility in administering the Act from the Administrator and the state agencies to the federal courts. Pp. 255-256.

2. Since both the language of the relevant provisions of the Clean Air Amendments of 1970, especially § 110(a)(2), and their legislative history make it clear that Congress intended that grounds of economic and technological infeasibility be deemed wholly foreign to the Administrator's consideration of a state implementation plan, a court of appeals reviewing an approved plan under § 307(b)(1) cannot set it aside on such grounds, no matter when they are raised. Pp. 256-269.

(a) The mandatory "shall" in the provision of § 110(a)(2) that the Administrator "shall approve" an implementation plan if it satisfies the eight specified criteria, clearly indicates that the Administrator is not to be concerned with factors other than those specified, none of which appears to permit consideration of economic or technological infeasibility. P. 257.

(b) The criterion of § 110(a)(2) that the primary air quality standards be met "as expeditiously as practicable but . . . in no case later than three years," does not require consideration of claims of economic and technological infeasibility, but, as both the language and legislative history of that criterion make clear, it was intended that the Administrator must approve a plan that provides for attainment of the primary standards in three years even if attainment does not appear possible, the three-year deadline being central to the regulatory scheme of technology forcing. Pp. 257-260.

(c) The criterion of § 110(a)(2) that the state implementation plan contain such control measures "as may be necessary" to achieve the primary and secondary standards does not preclude

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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. 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. 266-269.

515 F.2d 206, affirmed.

MARSHALL, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 269.

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MARSHALL, J., lead opinion

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 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

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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).¹

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[96 S.Ct. 2523] 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

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State's five air quality regions -- the Metropolitan St. Louis Interstate region, 40 CFR § 52.1321 (1975) -- the Missouri plan concentrated on a control strategy and regulations to lower emissions in that area. The plan's emission limitations were effective at once, but the State retained authority to grant variances to particular sources that could not immediately comply.² Mo.Rev.Stat. § 203.110 (1972). The Administrator approved the plan on May 31, 1972. See 40 CFR § 52.1320 et seq. (1975).

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...