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Union Elec. Co. v. EPA

Citation: 6 ELR 20570
No. No. 75-1542, 427 U.S. 246/8 ERC 2143/(U.S., 06/25/1976) Aff'd

The Supreme Court holds that economic and technological infeasibility are not valid grounds for the review under § 307(b)(1) of the Clean Air Act of the EPA Administrator's approval under § 110(a)(2) of the Missouri implementation plan. Whether before or after lapse of the 30-day period specified in § 307(b)(1) for review of the Administrator's approval, only those grounds may be raised which, if known, would have rendered the Administrator's decision an abuse of discretion. Economic and technological infeasibility are "wholly foreign" to the eight criteria for evaluation of state implementation plans set forth in § 110(a)(2). Primary air quality standards under the Act, in contrast with secondary air quality standards, have a technology-forcing character that involves setting the standard without engaging in economic and technological determinations. Section 110(a)(2)(A) establishes a minimum standard applicable to the states. Section 110(a)(2)(B) cannot be construed to require the Administrator to reject state plans more stringent than necessary to meet these minimum national standards. The court of appeals decision, 6 ELR 20259 (8th Cir. 1975), is affirmed. In dictum the Court suggests that contentions of economic and technological infeasibility maybe raised before a state agency which is developing an implementation plan, or as grounds for a variance or revision in such a plan, or as mitigating circumstances in enforcement proceedings.

Burger, C.J., and Powell, concurring, question whether Congress would have chosen the same "inflexible demands" had it recognized that the shutdown of a metropolitan electric generating facility might damage public health more than sulfur dioxide emissions.

Counsel for Plaintiff
William F. Ferrell
Christopher L. Williams
Jerry B. Wamser
Stewart W. Smith, Jr.
Keefe, Schlafly, Griesediech & Ferrell
314 N. Broadway
St. Louis MO 63102
(314) 421-0845

Counsel for Federal Defendant
Peter A. Taft, Asst. Attorney General
Robert H. Bork, Solicitor General
A. Raymond Randolph, Jr., Deputy Solicitor General
Stephen L. Urbanczyk, Asst. to Solicitor General
Edmund B. Clark
Kathryn A. Oberly
Department of Justice
Washington DC 20530
(202) 737-8200

Marshall, J. for a unanimous Court.