author: Mr. Justice Marshall Mr. Justice Powell,

text:
    UNION ELECTRIC CO. v. ENVIRONMENTAL PROTECTION AGENCY et al.
    No. 74-1542.
    Argued January 21, 1976
    Decided June 25, 1976

      Marshall, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 269.

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

      Assistant Attorney General Taft argued the cause for respondent Environmental Protection Agency. With him on the brief were Solicitor General Bork, Deputy Solicitor General Randolph, and Edmund B. Clark. John C. Danforth, Attorney General of Missouri, pro se, and Walter W. Nowotny, Jr., and Dan Summers, Assistant Attorneys General, filed briefs for respondents Dan-forth et al.

      Briefs of amici curiae urging reversal were filed by H. Edward Dunkelberger, Jr., Theodore L. Garrett, and A. Joseph Dowd for the Appalachian Power Co. et al.; by Cameron F. MacRae,

        Harry H. Voigt, and Henry V. Nickel for the Edison Electric Institute; and by Ronald A. Zumbrun and Raymond M. Momboisse for the Pacific Legal Foundation.

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

   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 of such plan.” § 110 (a) (2) (A) of the Clean Air Act, as added, 84 Stat. 1680, 42 U. S. C. § 1857&-5 (a) (2) (A). The plan must also provide for the attainment of national secondary ambient air quality standards'— those necessary to protect the public welfare — within a “reasonable time.” Ibid. Each State is given wide discretion in formulating its plan, and the Act provides that the Administrator “shall approve” the proposed plan if it has been adopted after public notice and hearing and if it meets eight specified criteria. § 110 (a) (2).

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 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. 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 (b) (1), but rather applied to the appropriate state and county agencies for variances from the emission limitations affecting its three plants. Petitioner received one-year variances, which could be extended upon reapplication. The variances on two of petitioner’s three plants had expired and petitioner was applying for extensions when, on May 31, 1974, the Administrator notified petitioner that sulfur dioxide emissions from its plants violated the emission limitations contained in the Missouri plan. See 40 Fed. Reg. 3566 (1975). Shortly thereafter petitioner filed a petition in the Court of Appeals for the Eighth Circuit for review of the Administrator’s 1972 approval of the Missouri implementation plan.

Section 307 (b)(1) allows petitions for review to be filed in an appropriate court of appeals more than 30 days after the Administrator’s approval of an implementation plan only if the petition is "based solely on grounds arising- after such 30th day.” Petitioner claimed to meet this requirement by asserting, inter alia, that various economic and technological difficulties had arisen more than 30 days after the Administrator’s approval and that these difficulties made compliance with the emission limitations impossible. The Court of Appeals 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-respond-ents, 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 re viewable 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, 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 i 307 (b)(1), the court is limited to reviewing “the Administrator’s 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 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 the States to strict minimum compliance requirements. These requirements are of a "technology-forcing character,” Train v. NRDC, supra, at 91, and are expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible.

This approach is apparent on the face of § 110 (a)(2). The provision sets out eight criteria that an implementation plan must satisfy, and provides that if these criteria are met and if the plan was adopted after reasonable notice and hearing, the Administrator "shall approve” the proposed state plan. The mandatory "shall” makes it quite clear that the Administrator is not to be concerned with factors other than those specified, Train v. NRDC, supra, at 71 n. 11, 79, and none of the eight factors appears to permit consideration of technological or economic infeasibility. 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 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 judgments— or even to be limited by what is or appears to be technologically or economically feasible. Our responsibility is to establish what the public interest requires to protect the health of persons. This may mean that people and industries will be asked to do what seems to be impossible at the present time.5 ” 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.” § 110 (a)(2)(A). Whatever room there is for considering claims of infeasibility in the attainment of primary standards must lie in this phrase, which is, 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 required both to be met "within a reasonable time.” H. R. 17255, 91st Cong., 2d Sess., §§ 107 (e)(1), 108 (c) (l)(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.

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.

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

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 which both Houses agree. 2 U. S. C. § 190c (a) (Senate Conference Reports); Rule XXVIII (3), Rules of the House of Representatives, and § 546, Jefferson’s Manual, H. R. Doc. No. 384, 92d Cong., 2d Sess., 526, 270-271 (1972); National Coal Operators’ Assn. v. Kleppe, 423 U. S. 388, 401 n. 10 (1976). Here the Conference Report expressly notes that both the Senate and House bills would allow States to submit plans more stringent than the national standards demand, and offers no suggestion that the Conference bill intended to change that result, even if it could. H. R. Conf. Rep. No. 91-1783, p. 45 (1970). And while the final language of § 110 (a) (2)(B) may be less explicit than the versions originally approved by the House and the Senate, the most natural reading of the “as may be necessary” phrase in context is simply that the Administrator must assure that the minimal, or “necessary,” requirements are met, not that he detect and reject any state plan more demanding than federal law requires.

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-l (1970 ed., Supp. IV), provides that the States may adopt emission standards stricter than the national standards. 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, 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. Train v. NRDC, 421 U. S., at 71 n. 11. Beyond that, if a State makes the legislative determination that it desires a particular air quality by a certain date and that it is willing to force technology to attain it — or lose a certain industry if attainment is not possible — such a determination is fully consistent with the structure and purpose of the Amendments, and § 110 (a) (2) (B) provides no basis for the EPA Administrator to object to the determination on the ground of infeasibility. See Train v. NRDC, supra, at 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 approved plan under § 307 (b) (1) cannot set it aside on those grounds, no matter when they are raised.

Ill

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 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. § 110 (a) (3) (A), as amended, 88 Stat. 256, 42 U. S. C. § 1857c-5 (a) (3) (A) (1970 ed., Supp. IY). Lastly, an industry denied an exemption from the implementation plan, or denied a subsequent variance, may be able to take its claims of 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).

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). 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 infeasible and that “the continued operation of [the emission source] is essential to national security or to the public health or welfare . . . § 110 (f). See Train v. NRDC, 421 U. S., at 81.

Even if the State does not intervene on behalf of an emission source, technological and economic factors may be considered in at least one other circumstance. When a source is found to be in violation of the state implementation plan, the Administrator may, after a conference with the operator, issue a compliance order rather than seek civil or criminal enforcement. Such an order must specify a “reasonable” time for compliance with the relevant standard, taking into account the seriousness of the violation and “any good faith efforts to comply with applicable requirements.” § 113 (a)(4) of the Clean Air Act, as added, 84 Stat. 1686, 42 U. S. C. § 1857o-8 (a) (4). Claims of technological or economic infeasibility, the Administrator agrees, are relevant to fashioning an appropriate compliance order under § 113 (a) (4). Brief for Respondent EPA 36 n. 34.

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 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.

Affirmed.

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 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.

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 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; rehable 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. 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 the public health its paramount consideration. See S. Rep. No. 91-1196, pp. 2-3 (1970). But the shutdown of an urban area’s electrical service could have an even more serious impact on the health of the public than that created by a decline in ambient air quality. The result apparently required by this legislation in its present form could sacrifice the well-being of a large metropolitan area through the imposition of inflexible demands that may be technologically impossible to meet and indeed may no longer even be necessary to the attainment of the goal of clean air.

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

       Section 110 (a) (2), 42 U. S. C. § 1857c-5 (a) (2), provides in full:
      “The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that—
      “(A) (i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e)) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained;
      “(B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls;
      “(C) it includes provision for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality and, (ii) upon request, make such data available to the Administrator;
      “(D) it includes a procedure, meeting the requirements of paragraph (4), for review (prior to construction or modification) of the location of new sources to which a standard of performance will apply;
      “(E) it contains adequate provisions for intergovernmental cooperation, including measures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other air quality control region;
      “(F) it provides (i) necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan, (ii) requirements for installation of equipment by owners or operators of stationary sources to monitor emissions from such sources, (iii) for periodic reports on the nature and amounts of such emissions; (iv) that such reports shall be correlated by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection; and (v) for authority comparable to that in section 303, and adequate contingency plans to implement such authority;
      “(G) it provides, to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards; and
      “(H) it provides for revision, after public hearings, of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of achieving such primary or secondary standard; or (ii) whenever the Administrator finds on the basis of information available to him that the plan is substantially inadequate to achieve the national ambient air quality primary or secondary standard which it implements.”

       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).

       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,

       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 ü. S. C. § 1857d-l (1970 ed., Supp. IV). 515 F. 2d, at 220. While certiorari was not sought on this question, it has been briefed for us and we find it necessary to resolve it in deciding this case. See infra, at 261-266.

       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.

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

       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.

       See n. 1, supra.

        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.

       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.

       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.”

       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).

       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.”

       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.

       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.

       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).

       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.

       If he chooses not to seek a compliance order, or if an order is issued and violated, the Administrator may institute a civil enforcement proceeding. § 113 (b). Additionally, violators of an implementation plan are subject to criminal penalties under § 113 (c) and citizen enforcement suits under § 304, as added, 84 Stat. 1706, 42 U. S. C. § 1857h-2. Some courts have suggested that in criminal or civil enforcement proceedings the violator may in certain circumstances raise a defense of economic or technological infeasibility. See Buckeye Power, Inc. v. EPA, 481 F. 2d 162, 173 (CA6 1973); Indiana & Michigan Electric Co. v. EPA, 509 F. 2d 839, 847 (CA7 1975). We do not address this question here.

       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.

       The record is clear beyond question that at least the sponsors and floor leaders of the Clean Air Act intended that industries unable to comply with approved state implementation plans, whether because of economic or technological infeasibility, would be “closed down.” This is explicit in the Senate Report. S. Rep. No. 91-1196, p. 3 (1970). It is repeated quite candidly in the statements of various members of the Senate and is described in detail in the EPA’s brief in this case. Brief for Respondent EPA 20-32. Indeed, remarkable as it may seem, it is clear from the legislative history that even total technological infeasibility is “irrelevant.” See id,., at 16, 18-23.
      What this means in this ease, if the allegations of Union Electric Co. prove to be correct, is that — in the interest of public health — the utility will be ordered to discontinue electric service to the public. As one cannot believe this would be allowed, I suppose that the State or Federal Government would find some basis for continuing to operate the company’s facilities to serve the public despite noncompliance. But no such contingency program or authority therefor is found in the statute, and we must decide the case on the record before us.

       The 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.


source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    McDONALD et al. v. SANTA FE TRAIL TRANSPORTATION CO. et al.
    No. 75-260.
    Argued April 20, 1976
    Decided June 25, 1976

      MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined, and in Parts I and II of which White and Rehnquist, JJ., joined. White and Rehnquist, JJ., filed a separate statement, post, p. 296.

      Henry M. Rosenblum argued the cause and filed a brief for petitioners.

      C. George Niebank, Jr., argued the cause for respondent Santa Fe Trail Transportation Co. With him on the brief was Benjamin R. Rowel. Chris Dixie argued the cause and filed a brief for respondent Local No. 988 of the Teamsters Freight, Tank Line & Automobile Industry Employees.

      Assistant Attorney General Pottinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork and Walter W. Barnett.

      Briefs of amici curiae urging reversal were filed by Samuel Babinove for the American Jewish Committee; and by Gerard C. Smetana, Jerry Kronenberg, Lawrence B. Kraus, and Richard B. Berman for the Chamber of Commerce of the United States.
      Briefs of amici curiae were filed by Larry M. Lavinsky, Arnold Forster, Amos Alter, and Donald A. Derfner for the Anti-Defamation League of B’nai B’rit-h; and by Jack Greenberg, Barry L. Goldstein, and Eric Schnapper for the N. A. A. C. P. Legal Defense and Educational Fund, Inc.

   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioners, L. N. McDonald and Raymond L. Laird, brought this action in the United States District Court for the Southern District of Texas seeking relief against Santa Fe Trail Transportation Co. (Santa Fe) and International Brotherhood of Teamsters Local 988 (Local 988), which represented Santa Fe’s Houston employees, for alleged violations of the Civil Rights Act of 1866, 42 U. S. C. § 1981, and of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., in connection with their discharge from Santa Fe’s employment. The District Court dismissed the complaint on the pleadings. The Court of Appeals for the Fifth Circuit affirmed. In determining whether the decisions of these courts were correct, we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed, states a claim under Title VII. Second, we must decide whether § 1981, which provides that “[a] 11 persons . . . shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens . . .” affords protection from racial discrimination in private employment to white persons as well as nonwhites.

I

Because the District Court dismissed this case on the pleadings, we take as true the material facts alleged in petitioners’ complaint. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U. S. 738, 740 (1976). On September 26, 1970, petitioners, both white, and Charles Jackson, a Negro employee of Santa Fe, were jointly and severally charged with misappropriating 60 one-gallon cans of antifreeze which was part of a shipment Santa Fe was carrying for one of its customers. Six days later, petitioners were fired by Santa Fe, while Jackson was retained. A grievance was promptly filed with Local 988, pursuant to the collective-bargaining agreement between the two respondents, but grievance proceedings secured no relief. The following April, complaints were filed with the Equal Employment Opportunity Commission (EEOC) charging that Santa Fe had discriminated against both petitioners on the basis of their race in firing them, and that Local 988 had discriminated against McDonald on the basis of his race in failing properly to represent his interests in the grievance proceedings, all in violation of Title VII of the Civil Rights Act of 1964. Agency process proved equally unavailing for petitioners, however, and the EEOC notified them in July 1971 of their right under the Act to initiate a civil action in district court within 30 days. This suit followed, petitioners joining their § 1981 claim to their Title VII allegations.

Respondents moved to dismiss the complaint, and in June 1974 the District Court issued a final modified opinion and order dismissing petitioners’ claims under both Title VII and § 1981. Turning first to the § 1981 claim, the District Court determined that § 1981 is wholly inapplicable to racial discrimination against white persons, and dismissed the claim for want of jurisdiction. Turning then to petitioners’ claims under Title VII, the District Court concluded it had no jurisdiction over Laird’s Title VII claim against Local 988, because Laird had not filed any charge against Local 988 with the EEOC. Respondent Santa Fe additionally contended that petitioners’ EEOC charges against it, filed more than 90 days after their discharge, were untimely. Apparently relying upon Fifth Circuit authority for the proposition that the 90-day period for filing with the EEOC was tolled during the pendency of grievance proceedings, however, the District Court concluded that the question of timely filing with the EEOC could not be determined without a hearing on petitioners’ allegations that they had not been notified until April 3, 1971, of the termination of the grievance proceedings. But the District Court found it unnecessary to hold such a hearing, since it concluded, quite apart from any timeliness problem, that “the dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief may be granted.” App. 117.

The Court of Appeals affirmed the dismissal, per curiam, 513 F. 2d 90 (1975), noting in regard to the Title VII claim asserted: “There is no allegation that the plaintiffs were falsely charged. Disciplinary action for offenses not constituting crimes is not involved in this case.” Id., at 90-91. We granted certiorari. 423 U. S. 923 (1975). We reverse.

II

Title YII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” §703 (a)(1), 42 U. S. C. § 2000e-2 (a)(1). Its terms are not limited to discrimination against members of any particular race. Thus, although we were not there confronted with racial discrimination against whites, we described the Act in Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), as prohibiting “[discriminatory preference for any [racial] group, minority or majority” (emphasis added) , Similarly the EEOC, whose interpretations are entitled to great deference, id., at 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would

“constitute a derogation of the Commission’s Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.” EEOC Decision No. 7A-31, 7 FEP 1326, 1328, CCH EEOC Decisions ¶ 6404, p. 4084 (1973).

This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to “cover white men and white women and all Americans,” 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an “obligation not to discriminate against whites,” id., at 7218 (memorandum of Sen. Clark). See also id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.

Respondents contend that, even though generally applicable to white persons, Title VII affords petitioners no protection in this case, because their dismissal was based upon their commission of a serious criminal offense against their employer. We think this argument is foreclosed by our decision in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).

In McDonnell Douglas, a laid-off employee took part in an illegal “stall-in” designed to block traffic into his former employer’s plant, and was arrested, convicted, and fined for obstructing traffic. At a later date, the former employee applied for an open position with the company, for which he was apparently otherwise qualified, but the employer turned down the application, assertedly because of the former employee’s illegal activities against it. Charging that he was denied re-employment because he was a Negro, a claim the company denied, the former employee sued under Title VII. Reviewing the case on certiorari, we concluded that the rejected employee had adequately stated a claim under Title VII. See id., at 801. Although agreeing with the employer that “[njothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it,” id., at 803, we also recognized:

“[T]he inquiry must not end here. While Title VII does not, without more, compel rehiring of [the former employee], neither does it permit [the employer] to use [the former employee’s] conduct as a pretext for the sort of discrimination prohibited by [the Act]. On remand, [the former employee] must ... be afforded a fair opportunity to show that [the employer’s] stated reason for [the former employee’s] rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against [the employer] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to' members of all races.” Id., at 804.

We find this case indistinguishable from McDonnell Douglas. Fairly read, the complaint asserted that petitioners were discharged for their alleged participation in a misappropriation of cargo entrusted to Santa Fe, but that a fellow employee, likewise implicated, was not so disciplined, and that the reason for the discrepancy in discipline was that the favored employee is Negro while petitioners are white. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957) While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be “applied, alike to members of all races,” and Title VII is violated if, as petitioners alleged, it was not.

We cannot accept respondents’ argument that the principles of McDonnell Douglas are inapplicable where the discharge was based, as petitioners’ complaint admitted, on participation in serious misconduct or crime directed against the employer. The Act prohibits all racial discrimination in employment, without exception for any group of particular employees, and while crime or other misconduct may be a legitimate basis for discharge, it is hardly one for racial discrimination. Indeed, the Title VII plaintiff in McDonnell Douglas had been convicted for a nontrivial offense against his former employer. It may be that theft of property entrusted to an employer for carriage is a more compelling basis for discharge than obstruction of an employer’s traffic arteries, but this does not diminish the illogic in retaining guilty employees of one color while discharging those of another color.

At this stage of the litigation the claim against Local 988 must go with the claim against Santa Fe, for in substance the complaint alleges that the union shirked its duty properly to represent McDonald, and instead “acquiesced and/or joined in” Santa Fe’s alleged racial discrimination against him. Local 988 argues that as a matter of law it should not be subject to liability under Title VII in a situation, such as this, where some but not all culpable employees are ultimately discharged on account of joint misconduct, because in representing all the affected employees in their relations with the employer, the union may necessarily have to compromise by securing retention of only some. We reject the argument. The same reasons which prohibit an employer from discriminating on the basis of race among the culpable employees apply equally to the union; and whatever factors the mechanisms of compromise may legitimately take into account in mitigating discipline of some employees, under Title VII race may not be among them.

Thus, we conclude that the District Court erred in dismissing both petitioners’ Title VII claims against Santa Fe, and petitioner McDonald’s Title VII claim against Local 988.

Ill

Title 42 U. S. C. § 1981 provides in pertinent part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens . . . .” We have previously held, where discrimination against Negroes was in question, that § 1981 affords a federal remedy against discrimination in private employment on the basis of race, and respondents do not contend otherwise. Johnson v. Railway Express Agency, 421 U. S. 454, 459-460 (1975). See also Runyon v. McCrary, ante, at 168; Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). The question here is whether § 1981 prohibits racial discrimination in private employment against whites as well as nonwhites.

While neither of the courts below elaborated its reasons for not applying § 1981 to racial discrimination against white persons, respondents suggest two lines of argument to support that judgment. First, they argue that by operation of the phrase “as is enjoyed by white citizens,” § 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination. Second, they contend that such a reading is consistent with the legislative history of the provision, which derives its operative language from § 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, c. 31, § 1, 14 Stat. 27. See Runyon v. McCrary, ante, at 168-170, n. 8; Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431, 439 (1973). The 1866 statute, they assert, was concerned predominantly with assuring specified civil rights to the former Negro slaves freed by virtue of the Thirteenth Amendment, and not at all with protecting the corresponding civil rights of white persons.

We find neither argument persuasive. Rather, our examination of the language and history of § 1981 convinces us that § 1981 is applicable to racial discrimination in private employment against white persons.

First, we cannot accept the view that the terms of § 1981 exclude its application to racial discrimination against white persons. On the contrary, the statute explicitly applies to “all persons” (emphasis added), including white persons. See, e. g., United States v. Wong Kim Ark, 169 U. S. 649, 675-676 (1898). While a mechanical reading of the phrase “as is enjoyed by white citizens” would seem to lend support to respondents’ reading of the statute, we have previously described this phrase simply as emphasizing “the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S. 780, 791 (1966). In any event, whatever ambiguity there may be in the language of § 1981, see cases cited, supra, at 286 n. 16, is clarified by an examination of the legislative history of § 1981’s language as it was originally forged in the Civil Rights Act of 1866. Tidewater Oil Co. v. United States, 409 U. S. 151, 157 (1972); Immigration Service v. Errico, 385 U. S. 214, 218 (1966). It is to this subject that we now turn.

The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a “bill ... to protect all persons in the United States in their civil rights . . .” (emphasis added), and was initially described by him as applying to “every race and color.” Cong. Globe, 39th Cong., 1st Sess., 211 (1866) (hereinafter Cong. Globe). Consistent with the views of its draftsman, and the prevailing view in the Congress as to the reach of its powers under the enforcement section of the Thirteenth Amendment, the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as nonwhites. Its first section provided:

“[Tjhere shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Id., at 211.

While it is, of course, true that the immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves, the general discussion of the scope of the bill did not circumscribe its broad language to that limited goal. On the contrary, the bill was routinely viewed, by its opponents and supporters alike, as applying to the civil rights of whites as well as nonwhites. The point was most directly focused on in the closing debate in the Senate. During that debate, in response to the argument of Senator Davis of Kentucky that by providing for the punishment of racial discrimination in its enforcement section, § 2, the bill extended to Negroes a protection never afforded whites, Senator Trumbull said:

“Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?” Id., at 599 (emphasis supplied).

So advised, the Senate passed the bill shortly thereafter. Id., at 606-607.

It is clear, thus, that the bill, as it passed the Senate, was not limited in scope to discrimination against nonwhites. Accordingly, respondents pitch their legislative history argument largely upon the House’s amendment of the Senate bill to add the “as is enjoyed by white citizens” phrase. But the statutory history is equally clear that that phrase was not intended to have the effect of eliminating from the bill the prohibition of racial discrimination against whites.

Representative Wilson of Iowa, Chairman of the Judiciary Committee and the bill’s floor manager in the House, proposed the addition of the quoted phrase immediately upon the introduction of the bill. The change was offered explicitly to technically “perfect” the bill, and was accepted as such without objection or debate. Id., at 1115.

That Wilson’s amendment was viewed simply as a technical adjustment without substantive effect is corroborated by the structure of the bill as it then stood. Even as amended the bill still provided that “there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.” To read Wilson’s amendment as excluding white persons from the particularly enumerated civil rights guarantees of the Act would contradict this more general language; and we would be unwilling to conclude, without further evidence, that in adopting the amendment without debate or discussion, the House so regarded it.

Moreover, Representative Wilson’s initial elaboration on the meaning of Senator Trumbull’s bill, which immediately followed his securing passage of the foregoing amendment, fortifies our view that the amended bill was intended to protect whites as well as nonwhites. As Wilson described it, the purpose of the measure was to provide “for the equality of citizens ... in the enjoyment of ‘civil rights and immunities.’ ” Id., at 1117. Then, speaking in particular of “immunities” as “ ‘freedom or exemption from obligation,’ ” he made clear that the bill “secures to citizens of the United States equality in the exemptions of the law. . . . Whatever exemptions there may be shall apply to all citizens alike. One race shall not be more favored in this respect than another/’ ibid. Finally, in later dialogue Wilson made quite clear that the purpose of his amendment was not to affect the Act’s protection of white persons. Rather, he stated, “the reason for offering [the amendment] was this: it was thought by some persons that unless these qualifying words were incorporated in the bill, those rights might be extended to all citizens, whether male or female, majors or minors.” Cong. Globe, App. 157. Thus, the purpose of the amendment was simply “to emphasize the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S., at 791, not to limit its application to nonwhite persons.

The Senate debate on the House version of the bill likewise emphasizes that Representative Wilson's amendment was not viewed as limiting the bill's prohibition of racial discrimination against white persons. Senator Trumbull, still managing the bill on the floor of the Senate, was asked whether there was not an inconsistency between the application of the bill to all “citizens of every race and color'' and the statement that they shall have “the same right to make and enforce contracts . . . as is enjoyed by white persons,” (emphasis supplied) and it was suggested that the emphasized words were superfluous. Cong. Globe 1413. Senator Trumbull responded in agreement with the view that the words were merely “superfluous. I do not think they alter the bill. . . . [A]nd as in the opinion of the [Senate Judiciary] [C]ommittee which examined this matter they did not alter the meaning of the bill, the committee thought proper to recommend a concurrence . . . .” Ibid.

Finally, after the Senate’s acquiescence in the House version of the bill, id., at 1413-1416, and the subsequent veto by President Johnson, the debate in both the Senate and the House again reflected the proponents’ views that the bill did not favor nonwhites. Senator Trumbull once more rejected the view that the bill “discriminates in favor of colored persons,” id., at 1758, and in a similar vein, Representative Lawrence observed in the House that its “broad and comprehensive philanthropy which regards all men in their civil rights as equal before the law, is not made for any . . . race or color . . . but . . . will, if it become [s] a law, protect every citizen . . . .” Id., at 1833. On these notes, both Houses passed the bill by the prescribed margins, and the veto was overridden. Id., at 1802, 1861.

This cumulative evidence of congressional intent makes clear, we think, that the 1866 statute, designed to protect the “same right ... to make and enforce contracts” of “citizens of every race and color” was not understood or intended to be reduced by Representative Wilson’s amendment, or any other provision, to the protection solely of nonwhites. Rather, the Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race. Unlikely as it might have appeared in 1866 that white citizens would encounter substantial racial discrimination of the sort proscribed under the Act, the statutory structure and legislative history persuade us that the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves. And while the statutory language has been somewhat streamlined in re-enactment and codification, there is no indication that § 1981 is intended to provide any less than the Congress enacted in 1866 regarding racial discrimination against white persons. Runyon v. McCrary, ante, at 168, and n. 8. Thus, we conclude that the District Court erred in dismissing petitioners’ claims under § 1981 on the ground that the protections of that provision are unavailable to white persons.

The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice White and Mr. Justice Rehnquist join Parts I and II of the Court’s opinion, but for the reasons stated in Mr. Justice White’s dissenting opinion in Runyon v. McCrary, ante, p. 192, cannot join Part III since they do not agree that § 1981 is applicable in this case. To that extent they dissent.

       See § 706 (e) of the Act, 42 U. S. C. § 2000e-5 (e), as amended, 42 U. S. C. § 2000e-5 (f) (1) (1970 ed., Supp. IV). This issue is not presented for review on certiorari here.

       Sections 706 (a) and (d) of the 1964 Act provided in pertinent part:
      “(a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, . . . that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization . . . with a copy of such charge and shall make an investigation of such charge .... If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. . . .
      “(d) A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred . . . Amendments to § 706 by § 4 (a) of the Equal Employment Opportunity Act of 1972, 86 Stat. 104, 42 II. S. C. §2000^5 (1970 ed., Supp. IV), are not pertinent to this ease.

       See Hutchings v. United States Industries, Inc., 428 P. 2d 303 (1970); Culpepper v. Reynolds Metals Co., 421 F. 2d 888 (1970).

       Respondents also alleged that the grievance proceedings under the collective-bargaining agreement were concluded in October 1970, so that even asuming the 90-day period for filing with the EEOC was tolled until that time, the April 1971 charges were untimely.

       Section 703 of the Act, 42 U. S. C. § 2000e-2, provides in pertinent part:
      “(a) Employer practices. It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
      “(e) Labor organization practices. It shall be an unlawful employment practice for a labor organization ... to cause or attempt to cause an employer to discriminate against an individual in violation of this section.”

       Our discussion in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973), of the means by which a Title VII litigant might make out a prima facie case of racial discrimination is not contrary. There we said that a complainant could establish a prima facie case by showing:
      “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” (Footnote omitted.)
      As we particularly noted, however, this “specification . . . of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” Id., at 802 n. 13. Requirer ment (i) of this sample pattern of proof was set out only to demonstrate how the racial character of the discrimination could be established in the most common sort of case, and not as an indication of any substantive limitation of Title VII’s prohibition of racial discrimination.

       See, e. g., EEOC Decision No. 75-268, 10 FEP 1502, CCH EEOC Decisions ¶6452 (1975); EEOC Decision No. 74H06, 10 FEP 269, CCH EEOC Decisions ¶6427 (1974); EEOC Decision No. 74-95, 8 FEP 701, CCH EEOC Decisions ¶6432 (1974). None of the Courts of Appeals appears directly to have confronted the question. But compare, Parks v. Brennan, 389 F. Supp. 790 (ND Ga. 1974), rev’d on other grounds sub nom. Parks v. Dunlop, 517 F. 2d 785 (CA5 1975), with Haber v. Klassen, 10 FEP 1446 (ND Ohio 1975); Mele v. United States Dept. of Justice, 395 F. Supp. 592 (1975). Neither of the opinions below articulated a clear stance on the issue. Since his decision below, the District Judge in this case has held that Title YII is applicable to white persons. Spiess v. C. Itoh & Co. (America), Inc., 408 F. Supp. 916, 918 n. 3,929 n. 19 (SD Tex. 1976).

       Local 988 explicitly concedes that it makes no difference that petitioners are white and Jackson Negro, rather than the other way around. Brief for Respondent Local 988, p. 7. Santa Fe, while conceding that “across-the-board discrimination in favor of minorities could never be condoned consistent with Title VII,” contends nevertheless that “such discrimination ... in isolated cases which cannot reasonably be said to burden whites as a class unduly," such as is alleged here, “may be acceptable.” Brief for Respondent Santa Fe 20 (emphasis omitted). We cannot agree. There is no exception in the terms of the Act for isolated cases; on the contrary, “Title ,VII tolerates no racial discrimination, subtle or otherwise.” McDonnell Douglas Corp. v. Green, supra, at 801 (emphasis added).
      Santa Fe disclaims that the actions challenged here were any part of an affirmative action program, see Brief for Respondent Santa Fe 19 n. 5, and we emphasize that we do not consider here the permissibility of such a program, whether judicially required or otherwise prompted. Cf. Brief for United States as Amicus Curiae 7 n. 5.

       Both the District Court, App. 117, and the Court of Appeals, 513 F. 2d, at 90, specifically relied upon petitioners’ failure to allege that the charge of misappropriating the antifreeze was false. Petitioners assert here that their complaint should be construed to deny culpability, Brief for Petitioners 18-19, n. 37, but for the reasons discussed in the text, we need not consider whether the complaint can so be read.

       The use of the term “pretext” in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies; as the closing sentence to the quoted passage makes clear, no more is required to be shown than that race was a “but for” cause. See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975).

       Santa Fe contends that petitioners were required to plead with “particularity” the degree of similarity between their culpability in the alleged theft and the involvement of the favored coemployee, Jackson. This assertion, apparently not made below, too narrowly constricts the role of the pleadings. Significantly, respondents themselves declined to plead any dissimilarities in the alleged misconduct of Jackson and petitioners, and did not amend their pleadings even after an interim order of the District Court indicated it regarded petitioners’ allegations of racial discrimination as sufficient to raise the legal problem of dissimilar employment discipline of “equally guilty” employees of different races. App. 94. Of course, precise equivalence in culpability between employees is not the ultimate question: as we indicated in McDonnell Douglas, an allegation that other “employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained . . .” is adequate to plead an inferential case that the employer’s reliance on his discharged employee’s misconduct as grounds for terminating him was merely a pretext. 411 U. S., at 804 (emphasis added).

       Local 988 asserts petitioners’ alleged misappropriations would amount to a felony under Texas law, Tex. Penal Code Ann. § 31.03 (1974), and federal law, 18 U. S. C. § 659. We assume this assertion to be true.

       As we observed in McDonnell Douglas:

      “The trial judge noted that no personal injury or property damage resulted from the 'stall-in’ due ‘solely to the fact that law enforcement officials had obtained notice in advance of plaintiff’s . . . demonstration and were at the scene to remove plaintiff’s car from the highway.’ 318 F. Supp. 846, 851.” 411 U. S., at 803 n. 16.

       Local 988’s reliance on NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), is misplaced. In that case we held only that it did not violate the National Labor Relations Act for an employer, after lawfully discharging a number of employees for their participation in an illegal sit-down strike, to extend re-employment to some, but not all, of those discharged employees. We held there that the employer “was simply exercising its normal right to select its employees.” Id., at 259. There was no suggestion of racial discrimination, or any discrimination based upon legally protected labor activities, in Fansteel, however. See also American Ship Bldg. v. NLRB, 380 U. S. 300, 312 (1965).

       The statute provides in full:
      “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to mate and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

       The lower federal courts have divided on the applicability of § 1981 to racial discrimination against white persons. Decisions in accord with the holdings below include Bale v. United Steelworkers, 6 EPD ¶ 8948 (WD Pa. 1973); Ripp v. Dobbs Houses, Inc., 366 F. Supp. 205 (ND Ala. 1973); Perkins v. Banster, 190 F. Supp. 98 (Md. 1960). Decisions in conflict include Carter v. Gallagher, 452 F. 2d 315, 325 (CA8 1971); Hollander v. Sears, Roebuck & Co., 392 F. Supp. 90 (Conn. 1975); WRMA Broadcasting Co., Inc. v. Hawthorne, 365 F. Supp. 577 (MD Ala. 1973); Gannon v. Action, 303 F. Supp. 1240, 1244^1245 (ED Mo. 1969), aif’d on other grounds, 450 F. 2d 1227 (CA8 1971); Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894, 901 (ED Mo. 1969). We note that the District Judge in this case has changed his view since the decision below, and held that § 1981 is applicable to white persons. Spiess v. C. Itoh & Co. (America), Inc. 408 F. Supp. 916 (SD Tex. 1976).

       Cf. Cong. Globe 474:
      “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited.” (Emphasis added.)

       See generally, e. g., Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment, 12 Hous. L. Rev. 1 (1974); Biekel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 11-29 (1955). The Court has previously ratified the view that Congress is authorized under the Enforcement Clause of the Thirteenth Amendment to legislate in regard to “every race and individual.” Hodges v. United States, 203 U. S. 1, 16-17 (1906); see Jones v. Alfred H. Mayer Co., 392 U. S. 409, 441 n. 78 (1968).

       The bill’s concern with equal protection of civil rights for whites as well as nonwhites is also expressed in its § 4, which referred, as introduced, Cong. Globe 211, and enacted, 14 Stat. 28, to “protection, to all persons in their constitutional rights of equality before the law, without distinction of race or color.” The same concern is reflected in the evolution of an amendment offered by Senator Trumbull to provide, at the beginning of § 1: “That all persons of African descent bom in the United States are hereby declared to be citizens of the United States . . . Cong. Globe 474. The amendment, accepted in principle, was itself amended to replace “all persons of African descent born in the United States” with “all persons bom in the United States and not subject to any foreign power, excluding Indians not taxed,” 14 Stat. 27. This provision was ultimately superseded by § 1 of the Fourteenth Amendment.
      The congressional design to protect individuals of all races is further emphasized by re-enactment of the 1866 Act as part of the Enforcement Act of 1870, following ratification of the Fourteenth Amendment. See Jones v. Alfred H. Mayer Co., supra, at 436.

       See, e. g., Cong. Globe 504 (remarks of Sen. Howard, a supporter: “[The bill] simply gives to persons who are of different races or colors the same civil rights”); id., at 505 (remarks of Sen. Johnson, an opponent: “[T]he white as well as the black is included in this first section . . .”); id., at 601 (remarks of Sen. Hendricks, an opponent: “[The bill] provides, in the first place, that the civil rights of all men, without regard to color, shall be equal).” (Emphasis added.)
      Respondents reasonably assert that references to the bill’s placing Negroes’ and whites’ civil rights “upon precisely the same footing,” id., at 604 (remarks of Sen. Cowan, an opponent), and similar remarks might be read consistently either with the position that the measure was solely for relief of nonwhites, or with the position that it applies to protect whites as well. Respondents are unable, however, to summon any congressional debate from any stage in the bill’s consideration to contradict the plain language of the bill as introduced and the explicit statements of Senator Trumbull, and others, that the bill, as introduced, did comprehend the prohibition of antiwhite discrimination.

         After Representative Wilson's “perfecting” amendments, § 1 of the bill provided:
      “[A] 11 persons bom in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, without distinction of color, and there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery; and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as .a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” S. 61, 39th Cong., 1st Sess., House Print, Mar. 2, 1866.

       The provision generally forbidding “discrimination in civil rights or immunities ... on account of race, color, or previous condition of slavery” was ultimately struck from the statute in the House. Cong. Globe 1366. This does not affect the analysis here, however, for two reasons. First, the debates make clear that the ground for objection to that provision, and the reason for its ultimate omission, was the breadth of the terms “civil rights and immunities,” beyond those specifically enumerated in the second half of § 1, rather than an antagonism to the principle of protection for every race. See generally Georgia v. Rachel, 384 U. S. 780, 791-792 (1966); Bickel, supra, n. 18, at 11-29. Second, the point here is only that acceptance of respondents’ interpretation of Congressman Wilson’s amendment is inconsistent with the fact that the general provision against racial discrimination regarding civil rights remained in the Mil at the time of the amendment, and was not removed until debate had focused on its particular ambiguities more than a week later.

       Wilson also urged that the bill should pass
      “to protect our citizens, from the highest to the lowest, from the whitest to the blackest, in the enjoyment of the great fundamental rights which belong to all men.” Cong. Globe 1118.
      Wilson’s view that the Act applied equally to protect all races was echoed by other supporters of the bill in the House, as it had been in the Senate. See, e. g., the remarks of Representative Shallabarger:
      “Its whole effect is to require that whatever rights as to each of those enumerated civil . . . matters the States may confer upon one race or color of the citizens shall be held by all races in equality. Your State may deprive women of the right to sue or contract or testify, and children from doing the same. But if you do so, or do not so as to one race, you shall treat the other likewise. ... It secures — not to all citizens, but to all races as races who are citizens — equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” Id., at 1293.
      See also id., at 1159 (remarks of Rep. Windom); cf. id., at 1118 (remarks of Rep. Wilson).

       Local 988 suggests that the pattern for Wilson’s “as enjoyed by white citizens” amendment was similar language in § 2 of the civil rights bill which, as introduced by Senator Trumbull, Cong. Globe 211, and enacted, 14 Stat. 27, provided in pertinent part:
      “Any person who . . . shall subject . . . any inhabitant of any State or Territory ... to different punishment, pains, or penalties ... by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by a fine ... or imprisonment . . . That this may have been the source of the language of the amendment hardly explains its meaning. As recited above, the prescriptive portion of the bill, § 1, provided, as introduced, see supra, at 288, and enacted, see n. 25, infra, and provides as currently codified, that punishments shall be equal for members of all races. Section 2 of the bill is no different, as it criminalizes the application of “different punishment, pains, or penalties” (emphasis supplied) whether greater or lesser than what white persons would be subject to. Even were we to read § 2 of the Act as protecting only nonwhites, however, the significance of such a conclusion to the interpretation of § 1 would be slight; for we have previously explained that the 39th Congress apparently intended to apply criminal sanctions only to some, but not all, violations of the Act. See Jones v. Alfred H. Mayer Co., 392 U. S., at 424-425.

       Cong. Globe 1367. Section 1 of the bill, as it then stood, and as it was ultimately enacted, provided in relevant part:
      “[A]ll persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts ... as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” 14 Stat. 27.

       In his veto message, President Johnson recognized that the bill attempted to fix “a perfect equality of the white and black races.” Cong. Globe 1679.