1
1
BATES et al. v. DOW AGROSCIENCES LLC
1 certiorari to the united states court of appeals for the fifth circuit
No. 03-388.Argued January 10, 2005--Decided April 27, 2005
Petitioner Texas peanut farmers allege that their crops were severely damaged by the application of respondent's (Dow) "Strongarm" pesticide, which the Environmental Protection Agency (EPA) registered pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Petitioners gave Dow notice of their intent to sue, claiming that Strongarm's label recommended its use in all peanut-growing areas when Dow knew or should have known that it would stunt the growth of peanuts in their soil, which had pH levels of at least 7.0. In response, Dow sought a declaratory judgment in the Federal District Court, asserting that FIFRA pre-empted petitioners' claims. Petitioners counterclaimed, raising several state-law claims sounding in strict liability, negligence, fraud, and breach of express warranty. The District Court rejected one claim on state-law grounds and found the others barred by FIFRA's pre-emption provision, 7 U. S. C. §136v(b). Affirming, the Fifth Circuit held that §136v(b) expressly pre-empted the state-law claims because a judgment against Dow would induce it to alter its product label.
Held:
1. Under FIFRA, which was comprehensively amended in 1972, a manufacturer must obtain permission to market a pesticide by submitting a proposed label and supporting data to EPA, which will register the pesticide if it is efficacious, it will not cause unreasonable adverse effects on humans and the environment, and its label complies with the statute's misbranding prohibition. A pesticide is "misbranded" if its label, for example, contains a statement that is "false or misleading," §136(q)(1)(A), or lacks adequate instructions or warnings, §§136(q)(1)(F), (G). A State may regulate the sale and use of federally registered pesticides to the extent that regulation does not permit any sales or uses prohibited by FIFRA, §136v(a), but "[s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA]," §136v(b). Though tort litigation against pesticide manufacturers was a common feature of the legal landscape in 1972, after this Court held in Cipollone v. Liggett Group, Inc., 505 U. S. 504, that the term "requirement" in the Public Health Cigarette Smoking Act of 1969 included common-law duties, and therefore pre-empted certain tort claims against cigarette companies, courts began holding that §136v(b) pre-empted claims such as petitioners'. Pp. 4-9.
2. FIFRA's pre-emption provision applies only to state-law "requirements for labeling or packaging." §136v(b). While the Fifth Circuit was correct that "requirements" embraces both positive enactments and common-law duties, it erred in supposing that petitioners' defective design, defective manufacture, negligent testing, and breach of express warranty claims were premised on requirements for labeling or packaging. None of the common-law rules upon which these claims are based requires that manufacturers label or package their products in any particular way. The Fifth Circuit reached a contrary conclusion by reasoning that a finding of liability on these claims would induce Dow to alter its label. This was error because the prohibitions of §136v(b) apply only to "requirements." A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motives an optional decision is not a requirement. The proper inquiry calls for an examination of the elements of the common-law duty at issue, not for speculation as to whether a jury verdict will prompt the manufacturer to change its label. Pp. 9-13.
3. Petitioners' fraud and negligent-failure-to-warn claims, by contrast, are based on common-law rules that qualify as "requirements for labeling or packaging," since these rules set a standard for a product's labeling that Dow is alleged to have violated. While these common-law rules are subject to §136v(b), it does not automatically follow that they are pre-empted. Unlike the pre-emption clause in Cipollone, §136v(b) prohibits only state-law labeling requirements that are "in addition to or different from" FIFRA's labeling requirements. Thus, §136v(b) pre-empts any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not pre-empt a state-law requirement that is equivalent to, and fully consistent with, FIFRA's labeling standards. This "parallel requirements" reading of §136v(b) finds strong support in Medtronic, Inc. v. Lohr, 518 U. S. 470. Thus, although FIFRA does not provide a federal remedy to those injured as a result of a manufacturer's violation of FIFRA's labeling requirements, nothing in §136v(b) precludes States from providing such a remedy. Dow's contrary reading of §136v(b) fails to make sense of the phrase "in addition to or different from." Even if Dow offered a plausible alternative reading of §136v(b), this Court would have a duty to accept the reading disfavoring pre-emption. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655. The long history of tort litigation against manufacturers of poisonous substances adds force to the presumption against pre-emption, for Congress surely would have expressed its intention more clearly if it had meant to deprive injured parties of a long available form of compensation. Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in distributing inherently dangerous items. Finally, the policy objections raised against this Court's reading of §136v(b) are unpersuasive. Pp. 13-20.
4. Under the "parallel requirements" reading of §136v(b), a state-law labeling requirement must be equivalent to its federal counterpart to avoid pre-emption. State law need not, however, explicitly incorporate FIFRA's standards as an element of a cause of action. Because this Court has not received sufficient briefing on whether the Texas law governing petitioners' fraud and failure-to-warn claims is equivalent to FIFRA's misbranding standards and any relevant regulations, it is up to the Fifth Circuit to resolve the issue in the first instance. Pp. 20-21.
332 F. 3d 323, vacated and remanded.
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Scalia, J., joined.
DENNIS BATES, et al., PETITIONERS v. DOW
AGROSCIENCES LLC
1 on writ of certiorari to the united states court of
appeals for the fifth circuit
[April 27, 2005]
Justice Stevens delivered the opinion of the Court.
Petitioners are 29 Texas peanut farmers who allege that in the 2000 growing season their crops were severely damaged by the application of respondent's newly marketed pesticide named "Strongarm." The question presented is whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U. S. C. §136 et seq. (2000 ed. and Supp. II), pre-empts their state-law claims for damages.
I
Pursuant to its authority under FIFRA, the Environmental Protection Agency (EPA) conditionally registered Strongarm on March 8, 2000, thereby granting respondent (Dow) permission to sell this pesticide--a weed killer1--in the United States. Dow obtained this registration in time to market Strongarm to Texas farmers, who normally plant their peanut crops around May 1. According to petitioners--whose version of the facts we assume to be true at this stage--Dow knew, or should have known, that Strongarm would stunt the growth of peanuts in soils with pH levels of 7.0 or greater.2 Nevertheless, Strongarm's label stated, "Use of Strongarm is recommended in all areas where peanuts are grown," App. 108, and Dow's agents made equivalent representations in their sales pitches to petitioners. When petitioners applied Strongarm on their farms--whose soils have pH levels of 7.2 or higher, as is typical in western Texas--the pesticide severely damaged their peanut crops while failing to control the growth of weeds. The farmers reported these problems to Dow, which sent its experts to inspect the crops.
Meanwhile, Dow reregistered its Strongarm label with EPA prior to the 2001 growing season. EPA approved a "supplemental" label that was for "[d]istribution and [u]se [o]nly in the states of New Mexico, Oklahoma and Texas," id., at 179, the three States in which peanut farmers experienced crop damage. This new label contained the following warning: "Do not apply Strongarm to soils with a pH of 7.2 or greater." Id., at 181.
After unsuccessful negotiations with Dow, petitioners gave Dow notice of their intent to bring suit as required by the Texas Deceptive Trade Practices-Consumer Protection Act3 (hereinafter Texas DTPA). In response, Dow filed a declaratory judgment action in Federal District Court, asserting that petitioners' claims were expressly or impliedly pre-empted by FIFRA. Petitioners, in turn, brought counterclaims, including tort claims sounding in strict liability and negligence. They also alleged fraud, breach of warranty, and violation of the Texas DTPA. The District Court granted Dow's motion for summary judgment, rejecting one claim on state-law grounds and dismissing the remainder as expressly pre-empted by 7 U. S. C. §136v(b), which provides that States "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."
The Court of Appeals affirmed. It read §136v(b) to pre-empt any state-law claim in which "a judgment against Dow would induce it to alter its product label." 332 F. 3d 323, 331 (CA5 2003). The court held that because petitioners' fraud, warranty, and deceptive trade practices claims focused on oral statements by Dow's agents that did not differ from statements made on the product's label, success on those claims would give Dow a "strong incentive" to change its label. Those claims were thus pre-empted. Id., at 331-332. The court also found that petitioners' strict liability claim alleging defective design was essentially a "disguised" failure-to-warn claim and therefore pre-empted. Id., at 332. It reasoned: "One cannot escape the heart of the farmers' grievance: Strongarm is dangerous to peanut crops in soil with a pH level over 7.0, and that was not disclosed to them... . It is inescapable that success on this claim would again necessarily induce Dow to alter the Strongarm label." Id., at 332-333. The court employed similar reasoning to find the negligent testing and negligent manufacture claims pre-empted as well. Id., at 333.
This decision was consistent with those of a majority of the Courts of Appeals,4 as well of several state high courts,5 but conflicted with the decisions of other courts6 and with the views of the EPA set forth in an amicus curiae brief filed with the California Supreme Court in 2000.7 We granted certiorari to resolve this conflict. 542 U. S. ___ (2004).
II
Prior to 1910 the States provided the primary and possibly the exclusive source of regulatory control over the distribution of poisonous substances. Both the Federal Government's first effort at regulation in this area, the Insecticide Act of 1910, 36 Stat. 331, and FIFRA as originally enacted in 1947, ch. 125, 61 Stat. 163, primarily dealt with licensing and labeling. Under the original version of FIFRA, all pesticides sold in interstate commerce had to be registered with the Secretary of Agriculture. The Secretary would register a pesticide if it complied with the statute's labeling standards and was determined to be efficacious and safe.8 In 1970, EPA assumed responsibility for this registration process.
In 1972, spurred by growing environmental and safety concerns, Congress adopted the extensive amendments9 that "transformed FIFRA from a labeling law into a comprehensive regulatory statute." Ruckelshaus v. Monsanto Co., 467 U. S. 986, 991 (1984). "As amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority." Id., at 991-992. The 1972 amendments also imposed a new criterion for registration--environmental safety. Id., at 992. See generally 4 F. Grad, Treatise on Environmental Law §§8.02-8.03 (2004) (tracing FIFRA's statutory evolution).
Under FIFRA as it currently stands, a manufacturer seeking to register a pesticide must submit a proposed label to EPA as well as certain supporting data. 7 U. S. C. §§136a(c)(1)(C), (F). The agency will register the pesticide if it determines that the pesticide is efficacious (with the caveat discussed below), §136a(c)(5)(A); that it will not cause unreasonable adverse effects on humans and the environment, §§136a(c)(5)(C), (D); §136(bb); and that its label complies with the statute's prohibition on misbranding, §136a(c)(5)(B); 40 CFR §152.112(f) (2004). A pesticide is "misbranded" if its label contains a statement that is "false or misleading in any particular," including a false or misleading statement concerning the efficacy of the pesticide. §136(q)(1)(A); 40 CFR §156.10(a)(5)(ii). A pesticide is also misbranded if its label does not contain adequate instructions for use, or if its label omits necessary warnings or cautionary statements. §§136(q)(1)(F), (G).10
Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements. §136j(a)(1)(E); see also §136a(f)(2) (registration is prima facie evidence that the pesticide and its labeling comply with the statute's requirements, but registration does not provide a defense to the violation of the statute); §136a(f)(1) (a manufacturer may seek approval to amend its label). Additionally, manufacturers have a duty to report incidents involving a pesticide's toxic effects that may not be adequately reflected in its label's warnings, 40 CFR §§159.184(a), (b) (2004), and EPA may institute cancellation proceedings, 7 U. S. C. §136d(b), and take other enforcement action if it determines that a registered pesticide is misbranded.11
Section 136v, which was added in the 1972 amendments, addresses the States' continuing role in pesticide regulation. As currently codified, §136v provides:
"(a) In general
"A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
"(b) Uniformity
"Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
"(c) Additional uses
"(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State... ."
In 1978, Congress once again amended FIFRA, 92 Stat. 819, this time in response to EPA's concern that its evaluation of pesticide efficacy during the registration process diverted too many resources from its task of assessing the environmental and health dangers posed by pesticides. Congress addressed this problem by authorizing EPA to waive data requirements pertaining to efficacy, thus permitting the agency to register a pesticide without confirming the efficacy claims made on its label. §136a(c)(5). In 1979, EPA invoked this grant of permission and issued a general waiver of efficacy review, with only limited qualifications not applicable here. See 44 Fed. Reg. 27932 (1979); 40 CFR §158.640(b) (2004). In a notice published years later in 1996, EPA confirmed that it had "stopped evaluating pesticide efficacy for routine label approvals almost two decades ago," Pesticide Registration Notice 96-4, p. 3 (June 3, 1996), available at opppmsd1/PR_Notices/pr96-4.html, App. 232, and clarified that "EPA's approval of a pesticide label does not reflect any determination on the part of EPA that the pesticide will be efficacious or will not damage crops or cause other property damage." Id., at 5, App. 235. The notice also referred to an earlier statement in which EPA observed that " 'pesticide producers are aware that they are potentially subject to damage suits by the user community if their products prove ineffective in actual use.' " Id., at 5, App. 230 (quoting 47 Fed. Reg. 40661 (col. 2) (1982)). This general waiver was in place at the time of Strongarm's registration; thus, the EPA never passed on the accuracy of the statement in Strongarm's original label recommending the product's use "in all areas where peanuts are grown."
Although the modern version of FIFRA was enacted over three decades ago, this Court has never addressed whether that statute pre-empts tort and other common-law claims arising under state law. Courts entertained tort litigation against pesticide manufacturers since well before the passage of FIFRA in 1947,12 and such litigation was a common feature of the legal landscape at the time of the 1972 amendments.13 Indeed, for at least a decade after those amendments, arguments that such tort suits were pre-empted by §136v(b) either were not advanced or were unsuccessful. See, e.g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529 (CADC 1984). It was only after 1992 when we held in Cipollone v. Liggett Group, Inc., 505 U. S. 504, that the term "requirement or prohibition" in the Public Health Cigarette Smoking Act of 1969 included common-law duties, and therefore pre-empted certain tort claims against cigarette companies, that a groundswell of federal and state decisions emerged holding that §136v(b) pre-empted claims like those advanced in this litigation.
This Court has addressed FIFRA pre-emption in a different context. In Wisconsin Public Intervenor v. Mortier, 501 U. S. 597 (1991), we considered a claim that §136v(b) pre-empted a small town's ordinance requiring a special permit for the aerial application of pesticides. Although the ordinance imposed restrictions not required by FIFRA or any EPA regulation, we unanimously rejected the pre-emption claim. In our opinion we noted that FIFRA was not "a sufficiently comprehensive statute to justify an inference that Congress had occupied the field to the exclusion of the States." Id., at 607. "To the contrary, the statute leaves ample room for States and localities to supplement federal efforts even absent the express regulatory authorization of §136v(a)." Id., at 613.
As a part of their supplementary role, States have ample authority to review pesticide labels to ensure that they comply with both federal and state labeling requirements.14 Nothing in the text of FIFRA would prevent a State from making the violation of a federal labeling or packaging requirement a state offense, thereby imposing its own sanctions on pesticide manufacturers who violate federal law. The imposition of state sanctions for violating state rules that merely duplicate federal requirements is equally consistent with the text of §136v.
III
Against this background, we consider whether petitioners' claims15 are pre-empted by §136v(b), which, again, reads as follows: "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."
The introductory words of §136v(b)--"Such State"--appear to limit the coverage of that subsection to the States that are described in the preceding subsection (a). Texas is such a State because it regulates the sale and use of federally registered pesticides and does not permit any sales or uses prohibited by FIFRA. It is therefore beyond dispute that subsection (b) is applicable to this case.
The prohibitions in §136v(b) apply only to "requirements." An occurrence that merely motivates an optional decision does not qualify as a requirement. The Court of Appeals was therefore quite wrong when it assumed that any event, such as a jury verdict, that might "induce" a pesticide manufacturer to change its label should be viewed as a requirement. The Court of Appeals did, however, correctly hold that the term "requirements" in §136v(b) reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties. Our decision in Cipollone supports this conclusion. See 505 U. S., at 521 (plurality opinion) ("The phrase '[n]o requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules"); see also id., at 548-549 (Scalia, J., concurring in judgment in part and dissenting in part). While the use of "requirements" in a pre-emption clause may not invariably carry this meaning, we think this is the best reading of §136v(b).
That §136v(b) may pre-empt judge-made rules, as well as statutes and regulations, says nothing about the scope of that pre-emption. For a particular state rule to be pre-empted, it must satisfy two conditions. First, it must be a requirement "for labeling or packaging"; rules governing the design of a product, for example, are not pre-empted. Second, it must impose a labeling or packaging requirement that is "in addition to or different from those required under this subchapter." A state regulation requiring the word "poison" to appear in red letters, for instance, would not be pre-empted if an EPA regulation imposed the same requirement.
It is perfectly clear that many of the common-law rules upon which petitioners rely do not satisfy the first condition. Rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly do not qualify as requirements for "labeling or packaging." None of these common-law rules requires that manufacturers label or package their products in any particular way. Thus, petitioners' claims for defective design, defective manufacture, negligent testing, and breach of express warranty are not pre-empted.
To be sure, Dow's express warranty was located on Strongarm's label.16 But a cause of action on an express warranty asks only that a manufacturer make good on the contractual commitment that it voluntarily undertook by placing that warranty on its product.17 Because this common-law rule does not require the manufacturer to make an express warranty, or in the event that the manufacturer elects to do so, to say anything in particular in that warranty, the rule does not impose a requirement "for labeling or packaging." See id., at 525-526 (plurality opinion).18
In arriving at a different conclusion, the court below reasoned that a finding of liability on these claims would "induce Dow to alter [its] label." 332 F. 3d, at 332.19 This effects-based test finds no support in the text of §136v(b), which speaks only of "requirements." A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement. The proper inquiry calls for an examination of the elements of the common-law duty at issue, see Cipollone, 505 U. S., at 524; it does not call for speculation as to whether a jury verdict will prompt the manufacturer to take any particular action (a question, in any event, that will depend on a variety of cost/benefit calculations best left to the manufacturer's accountants).
The inducement test is unquestionably overbroad because it would impeach many "genuine" design defect claims that Dow concedes are not pre-empted. A design defect claim, if successful, would surely induce a manufacturer to alter its label to reflect a change in the list of ingredients or a change in the instructions for use necessitated by the improvement in the product's design. Moreover, the inducement test is not entirely consistent with §136v(a), which confirms the State's broad authority to regulate the sale and use of pesticides.20 Under §136v(a), a state agency may ban the sale of a pesticide if it finds, for instance, that one of the pesticide's label-approved uses is unsafe. This ban might well induce the manufacturer to change its label to warn against this questioned use. Under the inducement test, however, such a restriction would anomalously qualify as a "labeling" requirement. It is highly unlikely that Congress endeavored to draw a line between the type of indirect pressure caused by a State's power to impose sales and use restrictions and the even more attenuated pressure exerted by common-law suits. The inducement test is not supported by either the text or the structure of the statute.
Unlike their other claims, petitioners' fraud and negligent-failure-to-warn claims are premised on common-law rules that qualify as "requirements for labeling or packaging." These rules set a standard for a product's labeling that the Strongarm label is alleged to have violated by containing false statements and inadequate warnings. While the courts of appeal have rightly found guidance in Cipollone's interpretation of "requirements," some of those courts too quickly concluded that failure-to-warn claims were pre-empted under FIFRA, as they were in Cipollone, without paying attention to the rather obvious textual differences between the two pre-emption clauses.21
Unlike the pre-emption clause at issue in Cipollone,22 §136v(b) prohibits only state-law labeling and packaging requirements that are "in addition to or different from" the labeling and packaging requirements under FIFRA. Thus, a state-law labeling requirement is not pre-empted by §136v(b) if it is equivalent to, and fully consistent with, FIFRA's misbranding provisions. Petitioners argue that their claims based on fraud and failure-to-warn are not pre-empted because these common-law duties are equivalent to FIFRA's requirements that a pesticide label not contain "false or misleading" statements, §136(q)(1)(A), or inadequate instructions or warnings. §§136(q)(1)(F), (G). We agree with petitioners insofar as we hold that state law need not explicitly incorporate FIFRA's standards as an element of a cause of action in order to survive pre-emption. As we will discuss below, however, we leave it to the Court of Appeals to decide in the first instance whether these particular common-law duties are equivalent to FIFRA's misbranding standards.
The "parallel requirements" reading of §136v(b) that we adopt today finds strong support in Medtronic, Inc. v. Lohr, 518 U. S. 470 (1996). In addressing a similarly worded pre-emption provision in a statute regulating medical devices, we found that "[n]othing in [21 U. S. C.] §360k denies Florida the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements." Id., at 495.23 As Justice O'Connor explained in her separate opinion, a state cause of action that seeks to enforce a federal requirement "does not impose a requirement that is 'different from, or in addition to,' requirements under federal law. To be sure, the threat of a damages remedy will give manufacturers an additional cause to comply, but the requirements imposed on them under state and federal law do not differ. Section 360k does not preclude States from imposing different or additional remedies, but only different or additional requirements." Id., at 513 (opinion concurring in part and dissenting in part). Accordingly, although FIFRA does not provide a federal remedy to farmers and others who are injured as a result of a manufacturer's violation of FIFRA's labeling requirements, nothing in §136v(b) precludes States from providing such a remedy.
Dow, joined by the United States as amicus curiae, argues that the "parallel requirements" reading of §136v(b) would "give juries in 50 States the authority to give content to FIFRA's misbranding prohibition, establishing a crazy-quilt of anti-misbranding requirements different from the one defined by FIFRA itself and intended by Congress to be interpreted authoritatively by EPA." Brief for Respondent 16; see also Brief for United States as Amicus Curiae 25-27. In our view, however, the clear text of §136v(b) and the authority of Medtronic cannot be so easily avoided. Conspicuously absent from the submissions by Dow and the United States is any plausible alternative interpretation of "in addition to or different from" that would give that phrase meaning. Instead, they appear to favor reading those words out of the statute, which would leave the following: "Such State shall not impose or continue in effect any requirements for labeling or packaging." This amputated version of §136v(b) would no doubt have clearly and succinctly commanded the pre-emption of all state requirements concerning labeling. That Congress added the remainder of the provision is evidence of its intent to draw a distinction between state labeling requirements that are pre-empted and those that are not.
Even if Dow had offered us a plausible alternative reading of §136v(b)--indeed, even if its alternative were just as plausible as our reading of that text--we would nevertheless have a duty to accept the reading that disfavors pre-emption. "[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action." Medtronic, 518 U. S., at 485. In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention " 'clear and manifest.' " New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)); see also Medtronic, 518 U. S., at 485. Our reading is at once the only one that makes sense of each phrase in §136v(b) and the one favored by our canons of interpretation. The notion that FIFRA contains a nonambiguous command to pre-empt the types of tort claims that parallel FIFRA's misbranding requirements is particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today.24
The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984).25 Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items. See Mortier, 501 U. S., at 613 (stating that the 1972 amendments' goal was to "strengthen existing labeling requirements and ensure that these requirements were followed in practice"). Particularly given that Congress amended FIFRA to allow EPA to waive efficacy review of newly registered pesticides (and in the course of those amendments made technical changes to §136v(b)), it seems unlikely that Congress considered a relatively obscure provision like §136v(b) to give pesticide manufacturers virtual immunity from certain forms of tort liability. Overenforcement of FIFRA's misbranding prohibition creates a risk of imposing unnecessary financial burdens on manufacturers; under-enforcement creates not only financial risks for consumers, but risks that affect their safety and the environment as well.
Finally, we find the policy objections raised against our reading of §136v(b) to be unpersuasive. Dow and the United States greatly overstate the degree of uniformity and centralization that characterizes FIFRA. In fact, the statute authorizes a relatively decentralized scheme that preserves a broad role for state regulation. See id., at 613. Most significantly, States may ban or restrict the uses of pesticides that EPA has approved, §136v(a); they may also register, subject to certain restrictions, pesticides for uses beyond those approved by EPA, §136v(c). See also §136w-1 (authorizing EPA to grant States primary enforcement responsibility for use violations). A literal reading of §136v(b) is fully consistent with the concurrent authority of the Federal and State Governments in this sphere.
Private remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of FIFRA. Unlike the cigarette labeling law at issue in Cipollone, which prescribed certain immutable warning statements, FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products' performance in diverse settings. As one court explained, tort suits can serve as a catalyst in this process:
"By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides such as [the pesticide there at issue], a state tort action of the kind under review may aid in the exposure of new dangers associated with pesticides. Successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products; alternatively, EPA itself may decide that revised labels are required in light of the new information that has been brought to its attention through common law suits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement." Ferebee, 736 F. 2d, at 1541-1542.
Dow and the United States exaggerate the disruptive effects of using common-law suits to enforce the prohibition on misbranding. FIFRA has prohibited inaccurate representations and inadequate warnings since its enactment in 1947, while tort suits alleging failure-to-warn claims were common well before that date and continued beyond the 1972 amendments. We have been pointed to no evidence that such tort suits led to a "crazy-quilt" of FIFRA standards or otherwise created any real hardship for manufacturers or for EPA. Indeed, for much of this period EPA appears to have welcomed these tort suits. While it is true that properly instructed juries might on occasion reach contrary conclusions on a similar issue of misbranding, there is no reason to think such occurrences would be frequent or that they would result in difficulties beyond those regularly experienced by manufacturers of other products that everyday bear the risk of conflicting jury verdicts. Moreover, it bears noting that lay juries are in no sense anathema to FIFRA's scheme: In criminal prosecutions for violation of FIFRA's provisions, see §136l(b), juries necessarily pass on allegations of misbranding.
In sum, under our interpretation, §136v(b) retains a narrow, but still important, role. In the main, it pre-empts competing state labeling standards--imagine 50 different labeling regimes prescribing the color, font size, and wording of warnings--that would create significant inefficiencies for manufacturers.26 The provision also pre-empts any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not, however, pre-empt any state rules that are fully consistent with federal requirements.
Having settled on our interpretation of §136v(b), it still remains to be decided whether that provision pre-empts petitioners' fraud and failure-to-warn claims. Because we have not received sufficient briefing on this issue,27 which involves questions of Texas law, we remand it to the Court of Appeals. We emphasize that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre-emption. For example, were the Court of Appeals to determine that the element of falsity in Texas' common-law definition of fraud imposed a broader obligation than FIFRA's requirement that labels not contain "false or misleading statements," that state-law cause of action would be pre-empted by §136v(b) to the extent of that difference. State-law requirements must also be measured against any relevant EPA regulations that give content to FIFRA's misbranding standards. For example, a failure-to-warn claim alleging that a given pesticide's label should have stated "DANGER" instead of the more subdued "CAUTION" would be pre-empted because it is inconsistent with 40 CFR §156.64 (2004), which specifically assigns these warnings to particular classes of pesticides based on their toxicity.28
In undertaking a pre-emption analysis at the pleadings stage of a case, a court should bear in mind the concept of equivalence. To survive pre-emption, the state-law requirement need not be phrased in the identical language as its corresponding FIFRA requirement; indeed, it would be surprising if a common-law requirement used the same phraseology as FIFRA. If a case proceeds to trial, the court's jury instructions must ensure that nominally equivalent labeling requirements are genuinely equivalent. If a defendant so requests, a court should instruct the jury on the relevant FIFRA misbranding standards, as well as any regulations that add content to those standards. For a manufacturer should not be held liable under a state labeling requirement subject to §136v(b) unless the manufacturer is also liable for misbranding as defined by FIFRA.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
DENNIS BATES, et al., PETITIONERS v. DOW
AGROSCIENCES LLC
1 on writ of certiorari to the united states court of
appeals for the fifth circuit
[April 27, 2005]
Justice Breyer, concurring.
I write separately to stress the practical importance of the Court's statement that state-law requirements must "be measured against" relevant Environmental Protection Agency regulations "that give content to [the Federal Insecticide, Fungicide, and Rodenticide Act's] misbranding standards." Ante, at 21. In Medtronic, Inc. v. Lohr, 518 U. S. 470 (1996), I pointed out that an administrative agency, there the Food and Drug Administration, had the legal authority within ordinary administrative constraints to promulgate agency rules and to determine the pre-emptive effect of those rules in light of the agency's special understanding of "whether (or the extent to which) state requirements may interfere with federal objectives." Id., at 506 (opinion concurring in part and concurring in judgment). The EPA enjoys similar authority here. See 7 U. S. C. §136w(a)(1). As suggested by Medtronic, the federal agency charged with administering the statute is often better able than are courts to determine the extent to which state liability rules mirror or distort federal requirements. Thus, the EPA may prove better able than are courts to determine whether general state tort liability rules simply help to expose " 'new dangers associated with pesticides,' " ante, at 18 (quoting Ferebee v. Chevron Chemical Co., 736 F. 2d 1529, 1541 (CADC 1984)), or instead bring about a counterproductive " 'crazy-quilt of anti-misbranding requirements,' " ante, at 15 (quoting Brief for Respondent 16). And, within appropriate legal and administrative constraints, it can act accordingly. Cf. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 721 (1985) (agencies can monitor the dynamic between federal and local requirements and promulgate regulations pre-empting local legislation that interferes with federal goals). Emphasizing the importance of the agency's role in overseeing FIFRA's future implementation, I join the Court's opinion.
DENNIS BATES, et al., PETITIONERS v. DOW
AGROSCIENCES LLC
1 on writ of certiorari to the united states court of
appeals for the fifth circuit
[April 27, 2005]
Justice Thomas, with whom Justice Scalia joins, concurring in the judgment in part and dissenting in part.
I agree with the Court that the term "requirements" in §24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U. S. C. §136v(b), includes common-law duties for labeling or packaging. Ante, at 10. I also agree that state-law damages claims may not impose requirements "in addition to or different from" FIFRA's. Ante, at 19-21. While States are free to impose liability predicated on a violation of the federal standards set forth in FIFRA and in any accompanying regulations promulgated by the Environmental Protection Agency, they may not impose liability for labeling requirements predicated on distinct state standards of care. Section 136v(b) permits States to add remedies--not to alter or augment the substantive rules governing liability for labeling. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 513 (1996) (O'Connor, J., concurring in part and dissenting in part). Because the parties have not argued that Dow violated FIFRA's labeling standards,** the majority properly remands for the District Court to consider whether Texas law mirrors the federal standards.
However, the majority omits a step in its reasoning that should be made explicit: A state-law cause of action, even if not specific to labeling, nevertheless imposes a labeling requirement "in addition to or different from" FIFRA's when it attaches liability to statements on the label that do not produce liability under FIFRA. The state-law cause of action then adds some supplemental requirement of truthfulness to FIFRA's requirement that labeling statements not be "false or misleading." 7 U. S. C. §136(q)(1)(A). That is why the fraud claims here are properly remanded to determine whether the state and federal standards for liability-incurring statements are, in their application to this case, the same. See ante, at 20-21.
Under that reasoning, the majority mistreats two sets of petitioners' claims. First, petitioners' breach-of-warranty claims should be remanded for pre-emption analysis, contrary to the majority's disposition, see ante, at 11-12. To the extent that Texas' law of warranty imposes liability for statements on the label where FIFRA would not, Texas' law is pre-empted. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 551 (1992) (Scalia, J., concurring in judgment in part and dissenting in part). Second, the majority holds that petitioners' claim under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) is not pre-empted to the extent it is a breach-of-warranty claim. Ante, at 12, n. 18. However, the DTPA claim is also (and, in fact, perhaps exclusively) a claim for false or misleading representations on the label. App. 185-186. Therefore, all aspects of the DTPA claim should be remanded. The DTPA claim, like petitioners' fraud claims, should be pre-empted insofar as it imposes liability for label content where FIFRA would not.
I also note that, despite the majority's reference to a failure-to-warn claim, ante, at 9-10, n. 15, petitioners have not advanced an actual failure-to-warn claim. Instead, the Court of Appeals treated petitioners' claims for negligent testing and defective design and manufacture as "disguised claim[s] for failure to warn." 332 F. 3d 323, 332-333 (CA5 2003). If petitioners offer no evidence on remand that Dow erred in the testing, design, or manufacture of Strongarm, these claims will fail on the merits. On that point, I take the majority to agree. Ante, at 9-10, n. 15.
We need go no further to resolve this case. The ordinary meaning of §136v(b)'s terms makes plain that some of petitioners' state-law causes of action may be pre-empted. Yet the majority advances several arguments designed to tip the scales in favor of the States and against the Federal Government. These arguments, in addition to being unnecessary, are unpersuasive. For instance, the majority states that the presumption against pre-emption requires choosing the interpretation of §136v(b) that disfavors pre-emption. Ante, at 16-17. That presumption does not apply, however, when Congress has included within a statute an express pre-emption provision. See Cipollone v. Liggett Group, Inc., supra, at 545-546 (Scalia, J., concurring in judgment in part and dissenting in part); Nelson, Preemption, 86 Va. L. Rev. 225, 291-292, 298-303 (2000). Section 136v(b) is an explicit statement that FIFRA pre-empts some state-law claims. Thus, our task is to determine which state-law claims §136v(b) pre-empts, without slanting the inquiry in favor of either the Federal Government or the States.
The history of tort litigation against manufacturers is also irrelevant. Ante, at 17. We cannot know, without looking to the text of §136v(b), whether FIFRA preserved that tradition or displaced it. The majority notes that Congress must have intended to preserve common-law suits, because the legislative history does not indicate that Congress meant to abrogate such suits. Ante, at 19-20, n. 26; see also Small v. United States, ante, at __ (Thomas, J., dissenting) (criticizing novel practice of relying on silence in the legislative history); Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. ___, ___ (2004) (slip op., at 5) (Scalia, J., dissenting) (same). For the Court, then, enacting a pre-emption provision is not enough: either Congress must speak with added specificity in the statute (to avoid the presumption against pre-emption) or some individual Members of Congress or congressional committees must display their preference for pre-emption in the legislative record (to avoid a new canon of congressional silence). But the Court does not believe its own test, for it agrees that §136v(b) stands to abrogate many common-law causes of action. On remand, for example, petitioners may be unable to pursue a traditional common-law suit under Texas' law of fraud. Finally, while allowing additional state-law remedies likely aids in enforcing FIFRA's misbranding requirements, ante, at 18, it is for Congress, not this Court, to strike a balance between state tort suits and federal regulation.
Because we need only determine the ordinary meaning of §136v(b), the majority rightly declines to address respondent's argument that petitioners' claims are subject to other types of pre-emption. Brief for Respondent 36-37. For instance, the majority does not ask whether FIFRA's regulatory scheme is "so pervasive," and the federal interest in labeling "so dominant," that there is no room for States to provide additional remedies. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Nor does the majority ask whether enforcement of state-law labeling claims would "stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in enacting FIFRA. Hines v. Davidowitz, 312 U. S. 52, 67 (1941).
Today's decision thus comports with this Court's increasing reluctance to expand federal statutes beyond their terms through doctrines of implied pre-emption. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (Thomas, J., dissenting). This reluctance reflects that pre-emption analysis is not "[a] freewheeling judicial inquiry into whether a state statute is in tension with federal objectives," Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in judgment), but an inquiry into whether the ordinary meanings of state and federal law conflict.
2 FOOTNOTES
Footnote 1
Strongarm would more commonly be called a herbicide, but it is classified as a pesticide for purposes of FIFRA. See 7 U. S. C. §§136(t), (u).
Footnote 2
The term "pH," which stands for pondus hydrogenii, or "potential hydrogen," refers to the acidity of the soil.
Footnote 3
Tex. Bus. & Com. Code Ann. §17.01 et seq. (West 2002).
Footnote 4
See, e.g., Grenier v. Vermont Log Buildings, Inc., 96 F. 3d 559 (CA1 1996); Kuiper v. American Cyanamid Co., 131 F. 3d 656 (CA7 1997); Netland v. Hess & Clark, Inc., 284 F. 3d 895 (CA8 2002).
Footnote 5
See, e.g., Etcheverry v. Tri-Ag Service, Inc., 22 Cal. 4th 316, 993 P. 2d 366 (2000).
Footnote 6
See, e.g., Ferebee v. Chevron Chemical Co., 736 F. 2d 1529 (CADC 1984); American Cyanamid Co. v. Geye, 79 S. W. 3d 21 (Tex. 2002).
Footnote 7
See Brief Amicus Curiae for United States in Etcheverry v. Tri-Ag Serv., Inc., No. S072524 (Cal. Sup. Ct.) (hereinafter Brief Amicus Curiae for United States in Etcheverry). The Solicitor General has since adopted a contrary position. See Brief for United States as Amicus Curiae 20.
Footnote 8
If the Secretary declined registration, and the manufacturer refused to make changes, the Secretary was required to register the pesticide "under protest." In 1964, however, Congress eliminated this procedure, and required disappointed manufacturers to challenge a denial of registration through administrative review. 78 Stat. 190.
Footnote 9
Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973.
Footnote 10
A pesticide label must also conspicuously display any statement or information specifically required by the statute or its implementing regulations. §136(q)(1)(E). To mention only a few examples, the label must contain the name and address of the producer, the product registration number, and an ingredient statement. 40 CFR §§156.10(a)(1)(ii), (iv), (vi) (2004).
Footnote 11
EPA may issue "stop sale, use, or removal" orders and may seize offending products. §§136k(a), (b). Further, manufacturers may be subjected to civil and criminal penalties for violating FIFRA's requirements. §136l.
Footnote 12
See, e.g., Mossrud v. Lee, 163 Wis. 229, 157 N. W. 758 (1916); West Disinfecting Co. v. Plummer, 44 App. D. C. 345 (1916); McCrossin v. Noyes Bros. & Cutler, Inc., 143 Minn. 181, 173 N. W. 566 (1919); White v. National Bank of Commerce, 99 Cal. App. 519, 278 P. 915 (1929).
Footnote 13
See Hursh, Annotation, Liability of Manufacturer or Seller for Injury Caused by Animal Feed or Medicines, Crop Sprays, Fertilizers, Insecticides, Rodenticides, and Similar Products, 81 A. L. R. 2d 138, 144 (1962) ("A duty of due, reasonable care binds manufacturers and sellers of products of this kind. This duty of care includes a duty to warn of product-connected dangers, a duty on the part of the manufacturer to subject the product to reasonable tests, and a duty on the part of the seller to subject the product to reasonable inspection" (footnotes omitted)) (collecting cases).
Footnote 14
As the EPA's Website explains, "Federal law requires that before selling or distributing a pesticide in the United States, a person or company must obtain registration, or license, from EPA... . Most states conduct a review of the pesticide label to ensure that it complies with federal labeling requirements and any additional state restrictions of use." EPA, Pesticides: Regulating Pesticides, Evaluating Potential New Pesticides and Uses, (all Internet materials as visited Apr. 6, 2005, and available in the Clerk of Court's case file). See also F. Grad, Treatise on Environmental Law §8.05, p. 8-140 (2004) ("All the state[s] have some labeling requirements for pesticides, and these generally parallel [FIFRA] of 1947"); id., at 8-143 to 8-218 (reviewing the pesticide statutes of the 50 States).
Footnote 15
The briefing and the record leave some confusion as to what precise claims are at issue. In light of the posture of this case, we find it appropriate to address the following claims: breach of express warranty, fraud, violation of the Texas DTPA, strict liability (including defective design and defective manufacture), and negligent testing. We will also address negligent failure to warn, since the Court of Appeals read petitioners' allegations to support such a claim. But because petitioners do not press such a claim here, we leave it to the court below to determine whether they may proceed on such a claim on remand. Of course, we express no view as to whether any of these claims are viable as a matter of Texas law. Nor do we, given the early stage of this litigation, opine on whether petitioners can adduce sufficient evidence in support of their claims to survive summary judgment.
Footnote 16
The label stated: "Dow AgroSciences warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes stated on the label when used in strict accordance with the directions, subject to the inherent risks set forth below." App. 111.
Footnote 17
To the extent that petitioners' warranty and fraud claims are based on oral representations made by Dow's agents, they fall outside the text of §136v(b) for an independent reason. Because FIFRA defines labeling as "all labels and all other written, printed, or graphic matter" that accompany a pesticide, §136(p)(2), any requirement that applied to a sales agent's oral representations would not be a requirement for "labeling or packaging."
Footnote 18
The Court of Appeals held that petitioners' claim under the Texas DTPA was pre-empted insofar as the Act provides a remedy for the breach of an express warranty. 332 F. 3d 323, 332 (CA5 2003) (citing Texas law). Because petitioners' warranty claim is not pre-empted, their claim under the Act is not pre-empted to that extent.
Footnote 19
Other Courts of Appeal have taken a similar approach. See, e.g., Netland, 284 F. 3d, at 900 ("Thus, our task is to determine whether Netland's claims are essentially a challenge to Bovinol's label or the overall design of the pesticide. To guide our analysis, we must ask whether in seeking to avoid liability for any error, would the manufacturer choose to alter the label or the product").
Footnote 20
In Wisconsin Public Intervenor v. Mortier, 501 U. S. 597 (1991), we noted that §136v(a) is merely declaratory of the authority that the States retained after FIFRA; that provision did not "serve to hand back to the States powers that the statute had impliedly usurped." Id., at 614.
Footnote 21
See, e.g., Taylor AG Industries v. Pure-Gro, 54 F. 3d 555, 559 (CA9 1995) ("There is no notable difference between the language in the 1969 Cigarette Act and the language in FIFRA"); Shaw v. Dow Brands, Inc., 994 F. 2d 364, 371 (CA7 1993) ("Not even the most dedicated hair-splitter could distinguish these statements").
Footnote 22
"No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this [Act]." 15 U. S. C. §1334(b); Cipollone, 505 U. S., at 515.
Footnote 23
We added: "Even if it may be necessary as a matter of Florida law to prove that those violations were the result of negligent conduct, or that they created an unreasonable hazard for users of the product, such additional elements of the state-law cause of action would make the state requirements narrower, not broader, than the federal requirement. While such a narrower requirement might be 'different from' the federal rules in a literal sense, such a difference would surely provide a strange reason for finding pre-emption of a state rule insofar as it duplicates the federal rule." 518 U. S., at 495.
Footnote 24
Brief Amicus Curiae for United States in Etcheverry 33-35. See also Brief for United States as Amicus Curiae 20 (explaining its subsequent change in view).
Footnote 25
It is no answer that, even if all label-related claims are pre-empted under Dow's reading, other non-label-related tort claims would remain intact. Given the inherently dangerous nature of pesticides, most safety gains are achieved not through modifying a pesticide's design, but by improving the warnings and instructions contained on its label. See Brief for American Chemistry Council as Amicus Curiae 3.
Footnote 26
The legislative history of the 1972 amendments suggests that Congress had conflicting state labeling regulations in mind when crafting §136v(b). As one industry representative testified: "Some States might want the word 'flammable,' some 'inflammable.' ... Some States might want red lettering; others orange, another yellow, and so forth. We ask this committee, therefore, to recognize, as the Congress has in a number of similar regulatory statutes, the industry's need for uniformity by providing for this in the act." Hearings on Federal Pesticide Control Act of 1971 before the House Committee on Agriculture, 92d Cong., 1st Sess., 281-283 (1971) (statement of Robert L. Ackerly). By contrast, the lengthy legislative history is barren of any indication that Congress meant to abrogate most of the common-law duties long owed by pesticide manufacturers.
Footnote 27
Dow does not seem to argue that, by their terms, Texas's fraud and failure-to-warn causes of action are not equivalent to FIFRA's misbranding standards. Nor has Dow identified any EPA regulations that further refine those general standards in any way that is relevant to petitioners' allegations. Rather, Dow has chosen to mount a broader attack on the "parallel requirements" interpretation, thus seeming to argue for the pre-emption of even a state-law cause of action that expressly incorporates FIFRA's misbranding provisions. See Brief for Respondent 38, n. 25. Since Dow did not have the benefit of our construction of §136v(b), Dow should be allowed to address these matters on remand.
Footnote 28
At present, there appear to be relatively few regulations that refine or elaborate upon FIFRA's broadly phrased misbranding standards. To the extent that EPA promulgates such regulations in the future, they will necessarily affect the scope of pre-emption under §136v(b).
3 FOOTNOTES
Footnote *
* Petitioners' counterclaim expressly disclaims that Dow violated any provision of FIFRA. App. 192 (First Amended Counterclaim).
4
5 2
6 U.S. Supreme Court
1 CHEVRON U.S. A. v. NATURAL RES. DEF. COUNCIL, 467 U.S. 837 (1984)
467 U.S. 837
CHEVRON U.S. A. INC. v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
No. 82-1005.
Argued February 29, 1984
Decided June 25, 1984 *
[ Footnote * ] Together with No. 82-1247, American Iron & Steel Institute et al. v. Natural Resources Defense Council, Inc., et al.; and No. 82-1591, Ruckelshaus, Administrator, Environmental Protection Agency v. Natural Resources Defense Council, Inc., et al., also on certiorari to the same court.
The Clean Air Act Amendments of 1977 impose certain requirements on States that have not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation, including the requirement that such "nonattainment" States establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for such sources unless stringent conditions are met. EPA regulations promulgated in 1981 to implement the permit requirement allow a State to adopt a plantwide definition of the term "stationary source," under which an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant, thus allowing a State to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble." Respondents filed a petition for review in the Court of Appeals, which set aside the regulations embodying the "bubble concept" as contrary to law. Although recognizing that the amended Clean Air Act does not explicitly define what Congress envisioned as a "stationary source" to which the permit program should apply, and that the issue was not squarely addressed in the legislative history, the court concluded that, in view of the purpose of the nonattainment program to improve rather than merely maintain air quality, a plantwide definition was "inappropriate," while stating it was mandatory in programs designed to maintain existing air quality.
Held:
The EPA's plantwide definition is a permissible construction of the statutory term "stationary source." Pp. 842-866.
(a) With regard to judicial review of an agency's construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the [467 U.S. 837, 838] agency's answer is based on a permissible construction of the statute. Pp. 842-845.
(b) Examination of the legislation and its history supports the Court of Appeals' conclusion that Congress did not have a specific intention as to the applicability of the "bubble concept" in these cases. Pp. 845-851.
(c) The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas plainly discloses that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Pp. 851-853.
(d) Prior to the 1977 Amendments, the EPA had used a plantwide definition of the term "source," but in 1980 the EPA ultimately adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals here, precluding use of the "bubble concept" in nonattainment States' programs designed to enhance air quality. However, when a new administration took office in 1981, the EPA, in promulgating the regulations involved here, reevaluated the various arguments that had been advanced in connection with the proper definition of the term "source" and concluded that the term should be given the plantwide definition in nonattainment areas. Pp. 853-859.
(e) Parsing the general terms in the text of the amended Clean Air Act - particularly the provisions of 302(j) and 111(a)(3) pertaining to the definition of "source" - does not reveal any actual intent of Congress as to the issue in these cases. To the extent any congressional "intent" can be discerned from the statutory language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the EPA's power to regulate particular sources in order to effectuate the policies of the Clean Air Act. Similarly, the legislative history is consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments. The plantwide definition is fully consistent with the policy of allowing reasonable economic growth, and the EPA has advanced a reasonable explanation for its conclusion that the regulations serve environmental objectives as well. The fact that the EPA has from time to time changed its interpretation of the term "source" does not lead to the conclusion that no deference should be accorded the EPA's interpretation of the statute. An agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Policy arguments concerning the "bubble concept" should be addressed to legislators or administrators, not to judges. The EPA's interpretation of the statute here represents a reasonable accommodation of manifestly competing interests and is entitled to deference. Pp. 859-866.
222 U.S. App. D.C. 268, 685 F.2d 718, reversed. [467 U.S. 837, 839]
STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL and REHNQUIST, JJ., who took no part in the consideration or decision of the cases, and O'CONNOR, J., who took no part in the decision of the cases.
Deputy Solicitor General Bator argued the cause for petitioners in all cases. With him on the briefs for petitioner in No. 82-1591 were Solicitor General Lee, Acting Assistant Attorney General Habicht, Deputy Assistant Attorney General Walker, Mark I. Levy, Anne S. Almy, William F. Pedersen, and Charles S. Carter. Michael H. Salinsky and Kevin M. Fong filed briefs for petitioner in No. 82-1005. Robert A. Emmett, David Ferber, Stark Ritchie, Theodore L. Garrett, Patricia A. Barald, Louis E. Tosi, William L. Patberg, Charles F. Lettow, and Barton C. Green filed briefs for petitioners in No. 82-1247.
David D. Doniger argued the cause and filed a brief for respondents.Fn
Fn [467 U.S. 837, 839] Briefs of amici curiae urging reversal were filed for the American Gas Association by John A. Myler; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann P. Sheldon; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Robin L. Rivett.
A brief of amici curiae urging affirmance was filed for the Commonwealth of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, Thomas Y. Au, Duane Woodard, Attorney General of Colorado, Richard L. Griffith, Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, Robert A. Whitehead, Jr., Assistant Attorney General, James S. Tierney, Attorney General of Maine, Robert Abrams, Attorney General of New York, Marcia J. Cleveland and Mary L. Lyndon, Assistant Attorneys General, Irwin I. Kimmelman, Attorney General of New Jersey, John J. Easton, Jr., Attorney General of Vermont, Merideth Wright, Assistant Attorney General, Bronson C. La Follette, Attorney General of Wisconsin, and Maryann Sumi, Assistant Attorney General.
James D. English, Mary-Win O'Brien, and Bernard Kleiman filed a brief for the United Steelworkers of America, AFL-CIO-CLC, as amicus curiae.
JUSTICE STEVENS delivered the opinion of the Court.
In the Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat. 685, Congress enacted certain requirements applicable [467 U.S. 837, 840] to States that had not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation. The amended Clean Air Act required these "nonattainment" States to establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for a new or modified major stationary source unless several stringent conditions are met. 1 The EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of the term "stationary source." 2 Under this definition, an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant. The question presented by these cases is whether EPA's decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble" is based on a reasonable construction of the statutory term "stationary source."
2 I
The EPA regulations containing the plantwide definition of the term stationary source were promulgated on October [467 U.S. 837, 841] 14, 1981. 46 Fed. Reg. 50766. Respondents 3 filed a timely petition for review in the United States Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. 7607(b) (1). 4 The Court of Appeals set aside the regulations. National Resources Defense Council, Inc. v. Gorsuch, 222 U.S. App. D.C. 268, 685 F.2d 718 (1982).
The court observed that the relevant part of the amended Clean Air Act "does not explicitly define what Congress envisioned as a `stationary source, to which the permit program . . . should apply," and further stated that the precise issue was not "squarely addressed in the legislative history." Id., at 273, 685 F.2d, at 723. In light of its conclusion that the legislative history bearing on the question was "at best contradictory," it reasoned that "the purposes of the nonattainment program should guide our decision here." Id., at 276, n. 39, 685 F.2d, at 726, n. 39. 5 Based on two of its precedents concerning the applicability of the bubble concept to certain Clean Air Act programs, 6 the court stated that the bubble concept was "mandatory" in programs designed merely to maintain existing air quality, but held that it was "inappropriate" in programs enacted to improve air quality. Id., at 276, 685 F.2d, at 726. Since the purpose of the permit [467 U.S. 837, 842] program - its "raison d'etre," in the court's view - was to improve air quality, the court held that the bubble concept was inapplicable in these cases under its prior precedents. Ibid. It therefore set aside the regulations embodying the bubble concept as contrary to law. We granted certiorari to review that judgment, 461 U.S. 956 (1983), and we now reverse.
The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term "stationary source" when it had decided that Congress itself had not commanded that definition. Respondents do not defend the legal reasoning of the Court of Appeals. 7 Nevertheless, since this Court reviews judgments, not opinions, 8 we must determine whether the Court of Appeals' legal error resulted in an erroneous judgment on the validity of the regulations.
3 II
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, [467 U.S. 837, 843] as well as the agency, must give effect to the unambiguously expressed intent of Congress. 9 If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, 10 as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 11
"The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation [467 U.S. 837, 844] of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. 12 Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provison for a reasonable interpretation made by the administrator of an agency. 13
We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, 14 and the principle of deference to administrative interpretations
"has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e. g., National Broadcasting Co. v. United States, 319 U.S. 190 ; Labor Board v. Hearst Publications, Inc., 322 U.S. 111 ; Republic Aviation Corp. v. [467 U.S. 837, 845] Labor Board, 324 U.S. 793 ; Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194 ; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344 .
". . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." United States v. Shimer, 367 U.S. 374, 382 , 383 (1961).
Accord, Capital Cities Cable, Inc. v. Crisp, ante, at 699-700.
In light of these well-settled principles it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is "inappropriate" in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA's use of that concept here is a reasonable policy choice for the agency to make.
4 III
In the 1950's and the 1960's Congress enacted a series of statutes designed to encourage and to assist the States in curtailing air pollution. See generally Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 63 -64 (1975). The Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1976, "sharply increased federal authority and responsibility [467 U.S. 837, 846] in the continuing effort to combat air pollution," 421 U.S., at 64 , but continued to assign "primary responsibility for assuring air quality" to the several States, 84 Stat. 1678. Section 109 of the 1970 Amendments directed the EPA to promulgate National Ambient Air Quality Standards (NAAQS's) 15 and 110 directed the States to develop plans (SIP's) to implement the standards within specified deadlines. In addition, 111 provided that major new sources of pollution would be required to conform to technology-based performance standards; the EPA was directed to publish a list of categories of sources of pollution and to establish new source performance standards (NSPS) for each. Section 111(e) prohibited the operation of any new source in violation of a performance standard.
Section 111(a) defined the terms that are to be used in setting and enforcing standards of performance for new stationary sources. It provided:
"For purposes of this section:
. . . . .
"(3) The term `stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant." 84 Stat. 1683.
In the 1970 Amendments that definition was not only applicable to the NSPS program required by 111, but also was made applicable to a requirement of 110 that each state implementation plan contain a procedure for reviewing the location of any proposed new source and preventing its construction if it would preclude the attainment or maintenance of national air quality standards. 16
In due course, the EPA promulgated NAAQS's, approved SIP's, and adopted detailed regulations governing NSPS's [467 U.S. 837, 847] for various categories of equipment. In one of its programs, the EPA used a plantwide definition of the term "stationary source." In 1974, it issued NSPS's for the nonferrous smelting industry that provided that the standards would not apply to the modification of major smelting units if their increased emissions were offset by reductions in other portions of the same plant. 17
Nonattainment
The 1970 legislation provided for the attainment of primary NAAQS's by 1975. In many areas of the country, particularly the most industrialized States, the statutory goals were not attained. 18 In 1976, the 94th Congress was confronted with this fundamental problem, as well as many others respecting pollution control. As always in this area, the legislative struggle was basically between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes would retard industrial development with attendant social costs. The 94th Congress, confronting these competing interests, was unable to agree on what response was in the public interest: legislative proposals to deal with nonattainment failed to command the necessary consensus. 19
In light of this situation, the EPA published an Emissions Offset Interpretive Ruling in December 1976, see 41 Fed. Reg. 55524, to "fill the gap," as respondents put it, until Congress acted. The Ruling stated that it was intended to [467 U.S. 837, 848] address "the issue of whether and to what extent national air quality standards established under the Clean Air Act may restrict or prohibit growth of major new or expanded stationary air pollution sources." Id., at 55524-55525. In general, the Ruling provided that "a major new source may locate in an area with air quality worse than a national standard only if stringent conditions can be met." Id., at 55525. The Ruling gave primary emphasis to the rapid attainment of the statute's environmental goals. 20 Consistent with that emphasis, the construction of every new source in nonattainment areas had to meet the "lowest achievable emission rate" under the current state of the art for that type of facility. See Ibid. The 1976 Ruling did not, however, explicitly adopt or reject the "bubble concept." 21
5 IV
The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue. A small portion of the statute - 91 Stat. [467 U.S. 837, 849] 745-751 (Part D of Title I of the amended Act, 42 U.S.C. 7501-7508) - expressly deals with nonattainment areas. The focal point of this controversy is one phrase in that portion of the Amendments. 22
Basically, the statute required each State in a nonattainment area to prepare and obtain approval of a new SIP by July 1, 1979. In the interim those States were required to comply with the EPA's interpretative Ruling of December 21, 1976. 91 Stat. 745. The deadline for attainment of the primary NAAQS's was extended until December 31, 1982, and in some cases until December 31, 1987, but the SIP's were required to contain a number of provisions designed to achieve the goals as expeditiously as possible. 23 [467 U.S. 837, 850]
Most significantly for our purposes, the statute provided that each plan shall
"(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173 . . . ." Id., at 747.
Before issuing a permit, 173 requires (1) the state agency to determine that there will be sufficient emissions reductions in the region to offset the emissions from the new source and also to allow for reasonable further progress toward attainment, or that the increased emissions will not exceed an allowance for growth established pursuant to 172(b)(5); (2) the applicant to certify that his other sources in the State are in compliance with the SIP, (3) the agency to determine that the applicable SIP is otherwise being implemented, and (4) the proposed source to comply with the lowest achievable emission rate (LAER). 24 [467 U.S. 837, 851]
The 1977 Amendments contain no specific reference to the "bubble concept." Nor do they contain a specific definition of the term "stationary source," though they did not disturb the definition of "stationary source" contained in 111(a)(3), applicable by the terms of the Act to the NSPS program. Section 302(j), however, defines the term "major stationary source" as follows:
"(j) Except as otherwise expressly provided, the terms `major stationary source' and `major emitting facility' mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)." 91 Stat. 770.
6 V
The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas does not contain any specific comment on the "bubble concept" or the question whether a plantwide definition of a stationary source is permissible under the permit program. It does, however, plainly disclose that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Indeed, the House Committee Report identified the economic interest as one of the "two main purposes" of this section of the bill. It stated:
"Section 117 of the bill, adopted during full committee markup establishes a new section 127 of the Clean Air Act. The section has two main purposes: (1) to allow reasonable economic growth to continue in an area while making reasonable further progress to assure attainment of the standards by a fixed date; and (2) to allow [467 U.S. 837, 852] States greater flexibility for the former purpose than EPA's present interpretative regulations afford.
"The new provision allows States with nonattainment areas to pursue one of two options. First, the State may proceed under EPA's present `tradeoff' or `offset' ruling. The Administrator is authorized, moreover, to modify or amend that ruling in accordance with the intent and purposes of this section.
"The State's second option would be to revise its implementation plan in accordance with this new provision." H. R. Rep. No. 95-294, p. 211 (1977). 25
The portion of the Senate Committee Report dealing with nonattainment areas states generally that it was intended to "supersede the EPA administrative approach," and that expansion should be permitted if a State could "demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards." S. Rep. No. 95-127, p. 55 (1977). The Senate Report notes the value of "case-by-case review of each new or modified major source of pollution that seeks to locate in a region exceeding an ambient standard," explaining that such a review "requires matching reductions from existing sources against [467 U.S. 837, 853] emissions expected from the new source in order to assure that introduction of the new source will not prevent attainment of the applicable standard by the statutory deadline." Ibid. This description of a case-by-case approach to plant additions, which emphasizes the net consequences of the construction or modification of a new source, as well as its impact on the overall achievement of the national standards, was not, however, addressed to the precise issue raised by these cases.
Senator Muskie made the following remarks:
"I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation [the Offset Ruling] - and to the permit requirements of the revised implementation plans under the conference bill - is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant - or precursor. Thus, a new source is still subject to such requirements as `lowest achievable emission rate' even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.
"A source - including an existing facility ordered to convert to coal - is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded." 123 Cong. Rec. 26847 (1977).
7 VI
As previously noted, prior to the 1977 Amendments, the EPA had adhered to a plantwide definition of the term "source" under a NSPS program. After adoption of the 1977 Amendments, proposals for a plantwide definition were considered in at least three formal proceedings.
In January 1979, the EPA considered the question whether the same restriction on new construction in nonattainment areas that had been included in its December 1976 Ruling [467 U.S. 837, 854] should be required in the revised SIP's that were scheduled to go into effect in July 1979. After noting that the 1976 Ruling was ambiguous on the question "whether a plant with a number of different processes and emission points would be considered a single source," 44 Fed. Reg. 3276 (1979), the EPA, in effect, provided a bifurcated answer to that question. In those areas that did not have a revised SIP in effect by July 1979, the EPA rejected the plantwide definition; on the other hand, it expressly concluded that the plantwide approach would be permissible in certain circumstances if authorized by an approved SIP. It stated:
"Where a state implementation plan is revised and implemented to satisfy the requirements of Part D, including the reasonable further progress requirement, the plan requirements for major modifications may exempt modifications of existing facilities that are accompanied by intrasource offsets so that there is no net increase in emissions. The agency endorses such exemptions, which would provide greater flexibility to sources to effectively manage their air emissions at least cost." Ibid. 26 [467 U.S. 837, 855]
In April, and again in September 1979, the EPA published additional comments in which it indicated that revised SIP's could adopt the plantwide definition of source in nonattainment areas in certain circumstances. See id., at 20372, 20379, 51924, 51951, 51958. On the latter occasion, the EPA made a formal rulemaking proposal that would have permitted the use of the "bubble concept" for new installations within a plant as well as for modifications of existing units. It explained:
"`Bubble' Exemption: The use of offsets inside the same source is called the `bubble.' EPA proposes use of the definition of `source' (see above) to limit the use of the bubble under nonattainment requirements in the following respects:
"i. Part D SIPs that include all requirements needed to assure reasonable further progress and attainment by the deadline under section 172 and that are being carried out need not restrict the use of a plantwide bubble, the same as under the PSD proposal.
"ii. Part D SIPs that do not meet the requirements specified must limit use of the bubble by including a definition of `installation' as an identifiable piece of process equipment." 27 [467 U.S. 837, 856]
Significantly, the EPA expressly noted that the word "source" might be given a plantwide definition for some purposes and a narrower definition for other purposes. It wrote:
"Source means any building structure, facility, or installation which emits or may emit any regulated pollutant. `Building, structure, facility or installation' means plant in PSD areas and in nonattainment areas except where the growth prohibitions would apply or where no adequate SIP exists or is being carried out." Id., at 51925. 28
The EPA's summary of its proposed Ruling discloses a flexible rather than rigid definition of the term "source" to implement various policies and programs:
"In summary, EPA is proposing two different ways to define source for different kinds of NSR programs:
"(1) For PSD and complete Part D SIPs, review would apply only to plants, with an unrestricted plant-wide bubble.
"(2) For the offset ruling, restrictions on construction, and incomplete Part D SIPs, review would apply to both plants and individual pieces of process equipment, causing the plant-wide bubble not to apply for new and modified major pieces of equipment.
"In addition, for the restrictions on construction, EPA is proposing to define `major modification' so as to prohibit the bubble entirely. Finally, an alternative discussed but not favored is to have only pieces of process equipment reviewed, resulting in no plant-wide bubble and allowing minor pieces of equipment to escape NSR [467 U.S. 837, 857] regardless of whether they are within a major plant." Id., at 51934.
In August 1980, however, the EPA adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals in these cases. The EPA took particular note of the two then-recent Court of Appeals decisions, which had created the bright-line rule that the "bubble concept" should be employed in a program designed to maintain air quality but not in one designed to enhance air quality. Relying heavily on those cases, 29 EPA adopted a dual definition of "source" for nonattainment areas that required a permit whenever a change in either the entire plant, or one of its components, would result in a significant increase in emissions even if the increase was completely offset by reductions elsewhere in the plant. The EPA expressed the opinion that this interpretation was "more consistent with congressional intent" than the plantwide definition because it "would bring in more sources or modifications for review," 45 Fed. Reg. 52697 (1980), but its primary legal analysis was predicated on the two Court of Appeals decisions.
In 1981 a new administration took office and initiated a "Government-wide reexamination of regulatory burdens and complexities." 46 Fed. Reg. 16281. In the context of that [467 U.S. 837, 858] review, the EPA reevaluated the various arguments that had been advanced in connection with the proper definition of the term "source" and concluded that the term should be given the same definition in both nonattainment areas and PSD areas.
In explaining its conclusion, the EPA first noted that the definitional issue was not squarely addressed in either the statute or its legislative history and therefore that the issue involved an agency "judgment as how to best carry out the Act." Ibid. It then set forth several reasons for concluding that the plantwide definition was more appropriate. It pointed out that the dual definition "can act as a disincentive to new investment and modernization by discouraging modifications to existing facilities" and "can actually retard progress in air pollution control by discouraging replacement of older, dirtier processes or pieces of equipment with new, cleaner ones." Ibid. Moreover, the new definition "would simplify EPA's rules by using the same definition of `source' for PSD, nonattainment new source review and the construction moratorium. This reduces confusion and inconsistency." Ibid. Finally, the agency explained that additional requirements that remained in place would accomplish the fundamental purposes of achieving attainment with NAAQS's as expeditiously as possible. 30 These conclusions were expressed [467 U.S. 837, 859] in a proposed rulemaking in August 1981 that was formally promulgated in October. See id., at 50766.
8 VII
In this Court respondents expressly reject the basic rationable of the Court of Appeals' decision. That court viewed the statutory definition of the term "source" as sufficiently flexible to cover either a plantwide definition, a narrower definition covering each unit within a plant, or a dual definition that could apply to both the entire "bubble" and its components. It interpreted the policies of the statute, however, to mandate the plantwide definition in programs designed to maintain clean air and to forbid it in programs designed to improve air quality. Respondents place a fundamentally different construction on the statute. They contend that the text of the Act requires the EPA to use a dual definition - if either a component of a plant, or the plant as a whole, emits over 100 tons of pollutant, it is a major stationary source. They thus contend that the EPA rules adopted in 1980, insofar as they apply to the maintenance of the quality of clean air, as well as the 1981 rules which apply to nonattainment areas, violate the statute. 31
Statutory Language
The definition of the term "stationary source" in 111(a)(3) refers to "any building, structure, facility, or installation" which emits air pollution. See supra, at 846. This definition is applicable only to the NSPS program by the express terms of the statute; the text of the statute does not make this definition [467 U.S. 837, 860] applicable to the permit program. Petitioners therefore maintain that there is no statutory language even relevant to ascertaining the meaning of stationary source in the permit program aside from 302(j), which defines the term "major stationary source." See supra, at 851. We disagree with petitioners on this point.
The definition in 302(j) tells us what the word "major" means - a source must emit at least 100 tons of pollution to qualify - but it sheds virtually no light on the meaning of the term "stationary source." It does equate a source with a facility - a "major emitting facility" and a "major stationary source" are synonymous under 302(j). The ordinary meaning of the term "facility" is some collection of integrated elements which has been designed and constructed to achieve some purpose. Moreover, it is certainly no affront to common English usage to take a reference to a major facility or a major source to connote an entire plant as opposed to its constituent parts. Basically, however, the language of 302(j) simply does not compel any given interpretation of the term "source."
Respondents recognize that, and hence point to 111(a)(3). Although the definition in that section is not literally applicable to the permit program, it sheds as much light on the meaning of the word "source" as anything in the statute. 32 As respondents point out, use of the words "building, structure, facility, or installation," as the definition of source, could be read to impose the permit conditions on an individual building that is a part of a plant. 33 A "word may have a character of its own not to be submerged by its association." Russell Motor Car Co. v. United States, 261 U.S. 514, 519 [467 U.S. 837, 861] (1923). On the other hand, the meaning of a word must be ascertained in the context of achieving particular objectives, and the words associated with it may indicate that the true meaning of the series is to convey a common idea. The language may reasonably be interpreted to impose the requirement on any discrete, but integrated, operation which pollutes. This gives meaning to all of the terms - a single building, not part of a larger operation, would be covered if it emits more than 100 tons of pollution, as would any facility, structure, or installation. Indeed, the language itself implies a "bubble concept" of sorts: each enumerated item would seem to be treated as if it were encased in a bubble. While respondents insist that each of these terms must be given a discrete meaning, they also argue that 111(a)(3) defines "source" as that term is used in 302(j). The latter section, however, equates a source with a facility, whereas the former defines "source" as a facility, among other items.
We are not persuaded that parsing of general terms in the text of the statute will reveal an actual intent of Congress. 34 [467 U.S. 837, 862] We know full well that this language is not dispositive; the terms are overlapping and the language is not precisely directed to the question of the applicability of a given term in the context of a larger operation. To the extent any congressional "intent" can be discerned from this language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the agency's power to regulate particular sources in order to effectuate the policies of the Act.
Legislative History
In addition, respondents argue that the legislative history and policies of the Act foreclose the plantwide definition, and that the EPA's interpretation is not entitled to deference because it represents a sharp break with prior interpretations of the Act.
Based on our examination of the legislative history, we agree with the Court of Appeals that it is unilluminating. The general remarks pointed to by respondents "were obviously not made with this narrow issue in mind and they cannot be said to demonstrate a Congressional desire . . . ." Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 168 -169 (1945). Respondents' argument based on the legislative history relies heavily on Senator Muskie's observation that a new source is subject to the LAER requirement. 35 But the full statement is ambiguous and like the text of 173 itself, this comment does not tell us what a new source is, much less that it is to have an inflexible definition. We find that the legislative history as a whole is silent on the precise issue before us. It is, however, consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments. [467 U.S. 837, 863]
More importantly, that history plainly identifies the policy concerns that motivated the enactment; the plantwide definition is fully consistent with one of those concerns - the allowance of reasonable economic growth - and, whether or not we believe it most effectively implements the other, we must recognize that the EPA has advanced a reasonable explanation for its conclusion that the regulations serve the environmental objectives as well. See supra, at 857-859, and n. 29; see also supra, at 855, n. 27. Indeed, its reasoning is supported by the public record developed in the rulemaking process, 36 as well as by certain private studies. 37
Our review of the EPA's varying interpretations of the word "source" - both before and after the 1977 Amendments - convinces us that the agency primarily responsible for administering this important legislation has consistently interpreted it flexibly - not in a sterile textual vacuum, but in the context of implementing policy decisions in a technical and complex arena. The fact that the agency has from time to time changed its interpretation of the term "source" does not, as respondents argue, lead us to conclude that no deference should be accorded the agency's interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations [467 U.S. 837, 864] and the wisdom of its policy on a continuing basis. Moreover, the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute.
Significantly, it was not the agency in 1980, but rather the Court of Appeals that read the statute inflexibly to command a plantwide definition for programs designed to maintain clean air and to forbid such a definition for programs designed to improve air quality. The distinction the court drew may well be a sensible one, but our labored review of the problem has surely disclosed that it is not a distinction that Congress ever articulated itself, or one that the EPA found in the statute before the courts began to review the legislative work product. We conclude that it was the Court of Appeals, rather than Congress or any of the decisionmakers who are authorized by Congress to administer this legislation, that was primarily responsible for the 1980 position taken by the agency.
Policy
The arguments over policy that are advanced in the parties' briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the "bubble concept," but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges. 38 [467 U.S. 837, 865]
In these cases the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, 39 the agency considered the matter in a detailed and reasoned fashion, 40 and the decision involves reconciling conflicting policies. 41 Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred.
Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the [467 U.S. 837, 866] agency charged with the administration of the statute in light of everyday realities.
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978).
We hold that the EPA's definition of the term "source" is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth. "The Regulations which the Administrator has adopted provide what the agency could allowably view as . . . [an] effective reconciliation of these twofold ends . . . ." United States v. Shimer, 367 U.S., at 383 .
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE MARSHALL and JUSTICE REHNQUIST took no part in the consideration or decision of these cases.
JUSTICE O'CONNOR took no part in the decision of these cases.
9 Footnotes
[ ] ERRATA: "provison" should be "provision".
[ Footnote 1 ] Section 172(b)(6), 42 U.S.C. 7502(b)(6), provides:
"The plan provisions required by subsection (a) shall -
. . . . .
"(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173 (relating to permit requirements)." 91 Stat. 747.
[ Footnote 2 ] "(i) `Stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act.
"(ii) `Building, structure, facility, or installation' means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel." 40 CFR 51.18(j)(1)(i) and (ii) (1983).
[ Footnote 3 ] National Resources Defense Council, Inc., Citizens for a Better Environment, Inc., and North Western Ohio Lung Association, Inc.
[ Footnote 4 ] Petitioners, Chevron U.S. A. Inc., American Iron and Steel Institute, American Petroleum Institute, Chemical Manufacturers Association, Inc., General Motors Corp., and Rubber Manufacturers Association were granted leave to intervene and argue in support of the regulation.
[ Footnote 5 ] The court remarked in this regard:
"We regret, of course, that Congress did not advert specifically to the bubble concept's application to various Clean Air Act programs, and note that a further clarifying statutory directive would facilitate the work of the agency and of the court in their endeavors to serve the legislators' will." 222 U.S. App. D.C., at 276, n. 39, 685 F.2d, at 726, n. 39.
[ Footnote 6 ] Alabama Power Co. v. Costle, 204 U.S. App. D.C. 51, 636 F.2d 323 (1979); ASARCO Inc. v. EPA, 188 U.S. App. D.C. 77, 578 F.2d 319 (1978).
[ Footnote 7 ] Respondents argued below that EPA's plantwide definition of "stationary source" is contrary to the terms, legislative history, and purposes of the amended Clear Air Act. The court below rejected respondents' arguments based on the language and legislative history of the Act. It did agree with respondents contention that the regulations were inconsistent with the purposes of the Act, but did not adopt the construction of the statute advanced by respondents here. Respondents rely on the arguments rejected by the Court of Appeals in support of the judgment, and may rely on any ground that finds support in the record. See Ryerson v. United States, 312 U.S. 405, 408 (1941); LeTulle v. Scofield, 308 U.S. 415, 421 (1940); Langnes v. Green, 282 U.S. 531, 533 -539 (1931).
[ Footnote 8 ] E. g., Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956); J. E. Riley Investment Co. v. Commissioner, 311 U.S. 55, 59 (1940); Williams v. Norris, 12 Wheat. 117, 120 (1827); McClung v. Silliman, 6 Wheat. 598, 603 (1821).
[ Footnote 9 ] The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. See, e. g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32 (1981); SEC v. Sloan, 436 U.S. 103, 117 -118 (1978); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745 -746 (1973); Volkswagenwerk v. FMC, 390 U.S. 261, 272 (1968); NLRB v. Brown, 380 U.S. 278, 291 (1965); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965); Social Security Board v. Nierotko, 327 U.S. 358, 369 (1946); Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932); Webster v. Luther, 163 U.S. 331, 342 (1896). If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.
[ Footnote 10 ] See generally, R. Pound, The Spirit of the Common Law 174-175 (1921).
[ Footnote 11 ] The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. FEC v. Democratic Senatorial Campaign Committee, 454 U.S., at 39 ; Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75 (1975); Udall v. Tallman, 380 U.S. 1, 16 (1965); Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153 (1946); McLaren v. Fleischer, 256 U.S. 477, 480 -481 (1921).
[ Footnote 12 ] See, e. g., United States v. Morton, ante, at 834; Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981); Batterton v. Francis, 432 U.S. 416, 424 -426 (1977); American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 235 -237 (1936).
[ Footnote 13 ] E. g., INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981); Train v. Natural Resources Defense Council, Inc., 421 U.S., at 87 .
[ Footnote 14 ] Aluminum Co. of America v. Central Lincoln Peoples' Until Dist., ante, at 389; Blum v. Bacon, 457 U.S. 132, 141 (1982); Union Electric Co. v. EPA, 427 U.S. 246, 256 (1976); Investment Company Institute v. Camp, 401 U.S. 617, 626 -627 (1971); Unemployment Compensation Comm'n v. Aragon, 329 U.S., at 153 -154; NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131 (1944); McLaren v. Fleischer, 256 U.S., at 480 -481; Webster v. Luther, 163 U.S., at 342 ; Brown v. United States, 113 U.S. 568, 570 -571 (1885); United States v. Moore, 95 U.S. 760, 763 (1878); Edwards' Lessee v. Darby, 12 Wheat. 206, 210 (1827).
[ Footnote 15 ] Primary standards were defined as those whose attainment and maintenance were necessary to protect the public health, and secondary standards were intended to specify a level of air quality that would protect the public welfare.
[ Footnote 16 ] See 110(a)(2)(D) and 110(a)(4).
[ Footnote 17 ] The Court of Appeals ultimately held that this plantwide approach was prohibited by the 1970 Act, see ASARCO Inc., 188 U.S. App. D.C., at 83-84, 578 F.2d, at 325-327. This decision was rendered after enactment of the 1977 Amendments, and hence the standard was in effect when Congress enacted the 1977 Amendments.
[ Footnote 18 ] See Report of the National Commission on Air Quality, To Breathe Clean Air, 3.3-20 through 3.3-33 (1981).
[ Footnote 19 ] Comprehensive bills did pass both Chambers of Congress; the Conference Report was rejected in the Senate. 122 Cong. Rec. 34375-34403, 34405-34418 (1976).
[ Footnote 20 ] For example, it stated:
"Particularly with regard to the primary NAAQS's, Congress and the Courts have made clear that economic considerations must be subordinated to NAAQS achievement and maintenance. While the ruling allows for some growth in areas violating a NAAQS if the net effect is to insure further progress toward NAAQS achievement, the Act does not allow economic growth to be accommodated at the expense of the public health." 41 Fed. Reg. 55527 (1976).
[ Footnote 21 ] In January 1979, the EPA noted that the 1976 Ruling was ambiguous concerning this issue:
"A number of commenters indicated the need for a more explicit definition of `source.' Some readers found that it was unclear under the 1976 Ruling whether a plant with a number of different processes and emission points would be considered a single source. The changes set forth below define a source as `any structure, building, facility, equipment, installation, or operation (or combination thereof) which is located on one or more contiguous or adjacent properties and which is owned or operated by the same person (or by persons under common control).' This definition precludes a large plant from being separated into individual production lines for purposes of determining applicability of the offset requirements." 44 Fed. Reg. 3276.
[ Footnote 22 ] Specifically, the controversy in these cases involves the meaning of the term "major stationary sources" in 172(b)(6) of the Act, 42 U.S.C. 7502(b) (6). The meaning of the term "proposed source" in 173(2) of the Act, 42 U.S.C. 7503(2), is not at issue.
[ Footnote 23 ] Thus, among other requirements, 172(b) provided that the SIP's shall -
"(3) require, in the interim, reasonable further progress (as defined in section 171(1)) including such reduction in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology;
"(4) include a comprehensive, accurate, current inventory of actual emissions from all sources (as provided by rule of the Administrator) of each such pollutant for each such area which is revised and resubmitted as frequently as may be necessary to assure that the requirements of paragraph (3) are met and to assess the need for additional reductions to assure attainment of each standard by the date required under paragraph (1);
"(5) expressly identify and quantity the emissions, if any, of any such pollutant which will be allowed to result from the construction and operation of major new or modified stationary sources for each such area; . . .
. . . . .
"(8) contain emission limitations, schedules of compliance and such other measures as may be necessary to meet the requirements of this section." 91 Stat. 747.
Section 171(1) provided:
"(1) The term `reasonable further progress' means annual incremental reductions in emissions of the applicable air pollutant (including substantial [467 U.S. 837, 850] reductions in the early years following approval or promulgation of plan provisions under this part and section 110(a)(2)(I) and regular reductions thereafter) which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambient air quality standard by the date required in section 172(a)." Id., at 746.
[ Footnote 24 ] Section 171(3) provides:
"(3) The term `lowest achievable emission rate' means for any source, that rate of emissions which reflects -
"(A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or
"(B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent.
"In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source standards of performance."
The LAER requirement is defined in terms that make it even more stringent than the applicable new source performance standard developed under 111 of the Act, as amended by the 1970 statute.
[ Footnote 25 ] During the floor debates Congressman Waxman remarked that the legislation struck
"a proper balance between environmental controls and economic growth in the dirty air areas of America. . . . There is no other single issue which more clearly poses the conflict between pollution control and new jobs. We have determined that neither need be compromised. . . .
"This is a fair and balanced approach, which will not undermine our economic vitality, or impede achievement of our ultimate environmental objectives." 123 Cong. Rec. 27076 (1977).
The second "main purpose" of the provision - allowing the States "greater flexibility" than the EPA's interpretative Ruling - as well as the reference to the EPA's authority to amend its Ruling in accordance with the intent of the section, is entirely consistent with the view that Congress did not intend to freeze the definition of "source" contained in the existing regulation into a rigid statutory requirement.
[ Footnote 26 ] In the same Ruling, the EPA added:
"The above exemption is permitted under the SIP because, to be approved under Part D, plan revisions due by January 1979 must contain adopted measures assuring that reasonable further progress will be made. Furthermore, in most circumstances, the measures adopted by January 1979 must be sufficient to actually provide for attainment of the standards by the dates required under the Act, and in all circumstances measures adopted by 1982 must provide for attainment. See Section 172 of the Act and 43 F R 21673-21677 (May 19, 1978). Also, Congress intended under Section 173 of the Act that States would have some latitude to depart from the strict requirements of this Ruling when the State plan is revised and is being carried out in accordance with Part D. Under a Part D plan, therefore, there is less need to subject a modification of an existing facility to LAER and other stringent requirements if the modification is accompanied by sufficient intrasource offsets so that there is no net increase in emissions." 44 Fed. Reg. 3277 (1979).
[ Footnote 27 ] Id., at 51926. Later in that Ruling, the EPA added:
"However, EPA believes that complete Part D SIPs, which contain adopted and enforceable requirements sufficient to assure attainment, may apply the approach proposed above for PSD, with plant-wide review but no review of individual pieces of equipment. Use of only a plant-wide definition of source will permit plant-wide offsets for avoiding NSR of new or modified pieces of equipment. However, this is only appropriate once a SIP is adopted that will assure the reductions in existing emissions necessary for attainment. See 44 FR 3276 col. 3 (January 16, 1979). If the level of emissions allowed in the SIP is low enough to assure reasonable further progress and attainment, new construction or modifications with enough offset credit to prevent an emission increase should not jeopardize attainment." Id., at 51933.
[ Footnote 28 ] In its explanation of why the use of the "bubble concept" was especially appropriate in preventing significant deterioration (PSD) in clean air areas, the EPA stated: "In addition, application of the bubble on a plant-wide basis encourages voluntary upgrading of equipment, and growth in productive capacity." Id., at 51932.
[ Footnote 29 ] "The dual definition also is consistent with Alabama Power and ASARCO. Alabama Power held that EPA had broad discretion to define the constituent terms of `source' so as best to effectuate the purposes of the statute. Different definitions of `source' can therefore be used for different sections of the statute. . . .
"Moreover, Alabama Power and ASARCO taken together suggest that there is a distinction between Clean Air Act programs designed to enhance air quality and those designed only to maintain air quality. . . .
. . . . .
"Promulgation of the dual definition follows the mandate of Alabama Power, which held that, while EPA could not define `source' as a combination of sources, EPA had broad discretion to define `building,' `structure,' `facility,' and `installation' so as to best accomplish the purposes of the Act." 45 Fed. Reg. 52697 (1980).
[ Footnote 30 ] It stated:
"5. States will remain subject to the requirement that for all nonattainment areas they demonstrate attainment of NAAQS as expeditiously as practicable and show reasonable further progress toward such attainment. Thus, the proposed change in the mandatory scope of nonattainment new source review should not interfere with the fundamental purpose of Part D of the Act.
"6. New Source Performance Standards (NSPS) will continue to apply to many new or modified facilities and will assure use of the most up-to-date pollution control techniques regardless of the applicability of nonattainment area new source review.
"7. In order to avoid nonattainment area new source review, a major plant undergoing modification must show that it will not experience a [467 U.S. 837, 859] significant net increase in emissions. Where overall emissions increase significantly, review will continue to be required." 46 Fed. Reg. 16281 (1981).
[ Footnote 31 ] "What EPA may not do, however, is define all four terms to mean only plants. In the 1980 PSD rules, EPA did just that. EPA compounded the mistake in the 1981 rules here under review, in which it abandoned the dual definition." Brief for Respondents 29, n. 56.
[ Footnote 32 ] We note that the EPA in fact adopted the language of that definition in its regulations under the permit program. 40 CFR 51.18(j)(1)(i),(ii)(1983).
[ Footnote 33 ] Since the regulations give the States the option to define an individual unit as a source, see 40 CFR 51.18(j)(1) (1983), petitioners do not dispute that the terms can be read as respondents suggest.
[ Footnote 34 ] The argument based on the text of 173, which defines the permit requirements for nonattainment areas, is a classic example of circular reasoning. One of the permit requirements is that "the proposed source is required to comply with the lowest achievable emission rate" (LAER). Although a State may submit a revised SIP that provides for the waiver of another requirement - the "offset condition" - the SIP may not provide for a waiver of the LAER condition for any proposed source. Respondents argue that the plantwide definition of the term "source" makes it unnecessary for newly constructed units within the plant to satisfy the LAER requirement if their emissions are offset by the reductions achieved by the retirement of older equipment. Thus, according to respondents, the plantwide definition allows what the statute explicitly prohibits - the waiver of the LAER requirement for the newly constructed units. But this argument proves nothing because the statute does not prohibit the waiver unless the proposed new unit is indeed subject to the permit program. If it is not, the statute does not impose the LAER requirement at all and there is not need to reach any waiver question. In other words, 173 of the statute merely deals with the consequences of the definition of the term "source" and does not define the term.
[ Footnote 35 ] See supra, at 853. We note that Senator Muskie was not critical of the EPA's use of the "bubble concept" in one NSPS program prior to the 1977 amendments. See ibid.
[ Footnote 36 ] See, for example, the statement of the New York State Department of Environmental Conservation, pointing out that denying a source owner flexibility in selecting options made it "simpler and cheaper to operate old, more polluting sources than to trade up. . . ." App. 128-129.
[ Footnote 37 ] "Economists have proposed that economic incentives be substituted for the cumbersome administrative-legal framework. The objective is to make the profit and cost incentives that work so well in the marketplace work for pollution control. . . . [The `bubble' or `netting' concept] is a first attempt in this direction. By giving a plant manager flexibility to find the places and processes within a plant that control emissions most cheaply, pollution control can be achieved more quickly and cheaply." L. Lave & G. Omenn, Cleaning the Air: Reforming the Clean Air Act 28 (1981) (footnote omitted).
[ Footnote 38 ] Respondents point out if a brand new factory that will emit over 100 tons of pollutants is constructed in a nonattainment area, that plant must obtain a permit pursuant to 172(b)(6) and in order to do so, it must satisfy the 173 conditions, including the LAER requirement. Respondents argue if an old plant containing several large emitting units is to be modernized by the replacement of one or more units emitting over 100 tons of pollutant with a new unit emitting less - but still more than 100 tons - the result should be no different simply because "it happens to be built not at a new site, but within a pre-existing plant." Brief for Respondents 4.
[ Footnote 39 ] See, e. g., Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., ante, at 390.
[ Footnote 40 ] See SEC v. Sloan, 436 U.S., at 117 ; Adamo Wrecking Co. v. United States, 434 U.S. 275, 287 , n. 5 (1978); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
[ Footnote 41 ] See Capital Cities Cable, Inc. v. Crisp, ante, at 699-700; United States v. Shimer, 367 U.S. 374, 382 (1961). [467 U.S. 837, 867]
3
ENVIRONMENTAL DEFENSE et al. v. DUKE ENERGY CORP. et al.
1 certiorari to the united states court of appeals for the fourth circuit
No. 05-848. Argued November 1, 2006--Decided April 2, 2007
In the 1970s, Congress added two air pollution control schemes to the Clean Air Act (Act): New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of which covers modified, as well as new, stationary sources of air pollution. The NSPS provisions define "modification" of such a source as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. 42 U. S. C. §7411(a)(4). The PSD provisions require a permit before a "major emitting facility" can be "constructed," §7475(a), and define such "construction" to include a "modification (as defined in [NSPS])," §7479(2)(C). Despite this definitional identity, the Environmental Protection Agency's (EPA) regulations interpret "modification" one way for NSPS but differently for PSD. The NSPS regulations require a source to use the best available pollution-limiting technology, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 846, when a modification would increase the discharge of pollutants measured in kilograms per hour, 40 CFR §60.14(a), but the 1980 PSD regulations require a permit for a modification only when it is a "major" one, §51.166(b)(2)(i), and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years, §51.166(b)(21)(ii).
After respondent Duke Energy Corporation replaced or redesigned the workings of some of its coal-fired electric generating units, the United States filed this enforcement action, claiming, among other things, that Duke violated the PSD provisions by doing the work without permits. Petitioner environmental groups intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for summary judgment, asserting, inter alia, that none of its projects was a "major modification" requiring a PSD permit because none increased hourly emissions rates. Agreeing, the District Court entered summary judgment for Duke on all PSD claims. The Fourth Circuit affirmed, reasoning that Congress's decision to create identical statutory definitions of "modification" in the Act's NSPS and PSD provisions affirmatively mandated that this term be interpreted identically in the regulations promulgated under those provisions. When the court sua sponte requested supplemental briefing on the relevance of this Court's decision in Rowan Cos. v. United States, 452 U. S. 247, 250, that the Government could not adopt different interpretations of the word "wages" in different statutory provisions, plaintiffs injected a new issue into the case, arguing that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the regulation's validity that could not be raised in an enforcement proceeding, see 42 U. S. C. §7607(b)(2), since judicial review for validity can be obtained only by a petition to the District of Columbia Circuit, generally within 60 days of EPA's rulemaking, §7607(b)(1). The Fourth Circuit rejected this argument, ruling that its interpretation did not invalidate the PSD regulations because they can be interpreted to require an increase in the hourly emissions rate as an element of a major "modification."
Held: The Fourth Circuit's reading of the PSD regulations in an effort to conform them with their NSPS counterparts on "modification" amounted to the invalidation of the PSD regulations, which must comport with the Clean Air Act's limits on judicial review of EPA regulations for validity. Pp. 8-17.
(a) Principles of statutory interpretation do not rigidly mandate identical regulation here. Because "[m]ost words have different shades of meaning and consequently may be variously construed, [even] when [they are] used more than once in the same statute or ... section," the "natural presumption that identical words used in different parts of the same act are intended to have the same meaning ... is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different ways of implementation. The point is the same even when the terms share a common statutory definition, if it is general enough. See Robinson v. Shell Oil Co., 519 U. S. 337, 343-344. Robinson is not inconsistent with Rowan, where the Court's invalidation of the differing interpretations of "wages," 452 U. S., at 252, turned not on the fact that a "substantially identical" definition of that word appeared in each of the statutory provisions at issue, but on the failure of the regulations in question to serve Congress's manifest "concern for the interest of simplicity and ease of administration," id., at 255. In fact, in a case close to Rowan's facts, the Court recently declined to follow a categorical rule of resolving ambiguities in identical statutory terms identically regardless of their surroundings, United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213, but instead accorded "substantial judicial deference" to an agency's "longstanding," "reasonable," and differing interpretations of the statutory term at issue, id., at 218-220. It makes no difference here that the Clean Air Act does not merely repeat the same definition in its NSPS and PSD provisions, but that the PSD provisions refer back to the section defining "modification" for NSPS purposes. Nothing in the text or legislative history of the statutory amendment that added the NSPS cross-reference suggests that Congress meant to eliminate customary agency discretion to resolve questions about a statutory definition by looking to the surroundings in which the defined term appears. EPA's construction need do no more than fall within the outer limits of what is reasonable, as set by the Act's common definition. Pp. 9-12.
(b) The Fourth Circuit's construction of the 1980 PSD regulations to conform them to their NSPS counterparts was not a permissible reading of their terms. The PSD regulations clearly do not define a "major modification" in terms of an increase in the "hourly emissions rate." On its face, the definitional section specifies no rate at all, hourly or annual, merely requiring a "physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any" regulated pollutant. 40 CFR §51.166(b)(2)(i). But even when the regulations mention a rate, it is annual, not hourly. See, e.g., §51.166(b)(23)(i). Further at odds with the idea that hourly rate is relevant is the mandate that "[a]ctual emissions shall be calculated using the unit's actual operating hours," §51.166(b)(21)(ii), since "actual emissions" must be measured in a manner looking to the number of hours the unit is or probably will be actually running. The Court of Appeals's reasons for its different view are no match for these textual differences. Consequently, the Court of Appeals's construction of the 1980 PSD regulations must be seen as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of §7607(b), which limit challenges to the validity of a regulation during enforcement proceedings when such review "could have been obtained" in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. The Court has no occasion itself at this point to consider the significance of §7607(b). Pp. 12-17.
(c) Duke's claim that, even assuming the Act and the 1980 regulations authorize EPA to construe a PSD "modification" as it has done, EPA has been inconsistent in its positions and is now retroactively targeting 20 years of accepted practice was not addressed below. To the extent the claim is not procedurally foreclosed, Duke may press it on remand. P. 17.
411 F. 3d 539, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined, and in which Thomas, J., joined as to all but Part III-A. Thomas, J., filed an opinion concurring in part.
ENVIRONMENTAL DEFENSE, et al., PETITIONERS v.
DUKE ENERGY CORPORATION et al.
1 on writ of certiorari to the united states court of
appeals for the fourth circuit
[April 2, 2007]
Justice Souter delivered the opinion of the Court.
In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term "modification," 42 U. S. C. §7411(a)(4), while the PSD provisions use that word "as defined in" NSPS, §7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on "modification" to their NSPS counterparts, and that EPA's 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals's reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act's restrictions on judicial review of EPA regulations for validity.
I
The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845-846 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U. S. C. §§7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846; see also 1 F. Grad, Environmental Law §2.03, p. 2-356 (2006), both in newly constructed sources and those undergoing "modification," 42 U. S. C. §7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted," 42 U. S. C. §7411(a)(4).
EPA's 1975 regulations implementing NSPS provided generally that "any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of [S]ection 111." 40 CFR §60.14(a) (1976). Especially significant here is the identification of an NSPS "modification" as a change that "increase[s] ... the emission rate," which "shall be expressed as kg/hr of any pollutant discharged into the atmosphere." §60.14(b).1
NSPS, however, did too little to "achiev[e] the ambitious goals of the 1970 Amendments," R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amendments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country "notwithstanding attainment and maintenance of" the NAAQS. 42 U. S. C. §7470(1).2 The 1977 amendments required a PSD permit before a "major emitting facility" could be "constructed" in an area covered by the scheme. §7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: "The term 'construction' when used in connection with any source or facility, includes the modification (as defined in [S]ection 111(a)) of any source or facility." §14(a)(54), 91 Stat. 1402, 42 U. S. C. §7479(2)(C); see also New York v. EPA, 413 F. 3d 3, 13 (CADC 2005). In other words, the "construction" requiring a PSD permit under the statute was made to include (though it was not limited to)
a "modification" as defined in the statutory NSPS
provisions.
In 1980, EPA issued PSD regulations,3 which "limited the application of [PSD] review" of modified sources to instances of " 'major' modificatio[n]," Belden 46, defined as "any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act." 40 CFR §51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of "[a]n increase in the hours of operation or in the production rate" would not generally constitute a "physical change or change in the method of operation." §51.166(b)(2)(iii)(f ). For purposes of a PSD permit, that is, such an operational change would not amount to a "modification" as the Act defines it. Second, the PSD regulations defined a "net emissions increase" as "[a]ny increase in actual emissions from a particular physical change or change in the method of operation," net of other contemporaneous "increases and decreases in actual emissions at the source." §51.166(b)(3). "Actual emissions" were defined to "equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation." §51.166(b)(21)(ii). "[A]ctual emissions" were to be "calculated using the unit's actual operating hours [and] production rates." Ibid. Third, the term "significant" was defined as "a rate of emissions that would equal or exceed" one or another enumerated threshold, each expressed in "tons per year." §51.166(b)(23)(i).
It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case:
(a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one.
(b) EPA's NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour.
(c) EPA's 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years.
The Court of Appeals held that Congress's provision defining a PSD modification by reference to an NSPS modification caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology requirement). When, therefore, EPA's PSD regulations specify the "change" that amounts to a "major modification" requiring a PSD permit, they must measure an increase in "the amount of any air pollutant emitted," 42 U. S. C. §7411(a)(4), in terms of the hourly rate of discharge, just the way NSPS regulations do. Petitioners and the United States say, on the contrary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of "modification," by measuring increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagreement is the nub of the case.
II
Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United States v. Duke Energy Corp., 411 F. 3d 539, 544 (CA4 2005). The units were placed in service between 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Ibid. Between 1988 and 2000,4 Duke replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. Ibid.
The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund intervened as plaintiffs and filed a complaint charging similar violations.
Duke moved for summary judgment, one of its positions being that none of the projects was a "major modification" requiring a PSD permit because none increased hourly rates of emissions. The District Court agreed with Duke's reading of the 1980 PSD regulations. It reasoned that their express exclusion of "[a]n increase in the hours of operation" from the definition of a "physical change or change in the method of operation" implied that "post-project emissions levels must be calculated assuming" preproject hours of operation. 278 F. Supp. 2d 619, 640-641 (MDNC 2003). Consequently, the District Court said, a PSD "major modification" can occur "only if the project increases the hourly rate of emissions." Id., at 641. The District Court found further support for its construction of the 1980 PSD regulations in one letter and one memorandum written in 1981 by EPA's Director of the Division of Stationary Source Enforcement, Edward E. Reich. Id., at 641-642.
The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated "that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Energy's units." App. 504. Rather, their claim "is based solely on their contention that the projects would have been projected to result in an increased utilization of the units at issue." Ibid. Duke, for its part, stipulated to plaintiffs' right to appeal the District Court's determination that projects resulting in greater operating hours are not "major modifications" triggering the PSD permit requirement, absent an increase in the hourly rate of emissions. The District Court then entered summary judgment for Duke on all PSD claims.
The Court of Appeals for the Fourth Circuit affirmed, "albeit for somewhat different reasons." 411 F. 3d, at 542. "[T]he language and various interpretations of the PSD regulations ... are largely irrelevant to the proper analysis of this case," reasoned the Court of Appeals, "because Congress' decision to create identical statutory definitions of the term 'modification' " in the NSPS and PSD provisions of the Clean Air Act "has affirmatively mandated that this term be interpreted identically" in the regulations promulgated under those provisions. Id., at 547, n. 3, 550. The Court of Appeals relied principally on the authority of Rowan Cos. v. United States, 452 U. S. 247, 250 (1981), where we held against the Government's differing interpretations of the word "wages" in different tax provisions. 411 F. 3d, at 550. As the Court of Appeals saw it, Rowan establishes an "effectively irrebuttable" presumption that PSD regulations must contain the same conditions for a "modification" as the NSPS regulations, including an increase in the hourly rate of emissions.5 411 F. 3d, at 550.
As the Court of Appeals said, Duke had not initially relied on Rowan, see 411 F. 3d, at 547, n. 4, and when the Court sua sponte requested supplemental briefing on Rowan's relevance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement proceeding. See 42 U. S. C. §7607(b)(2). Under §307(b) of the Act, they said, judicial review for validity can be obtained only by a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA's rulemaking. 42 U. S. C. §7607(b).
The Court of Appeals rejected this argument. "Our choice of this interpretation of the PSD regulations ... is not an invalidation of those regulations," it said, because "the PSD regulations can be interpreted" to require an increase in the hourly emissions rate as an element of a major "modification" triggering the permit requirement. 411 F. 3d, at 549, n. 7. To show that the 1980 PSD regulations are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions.
We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U. S. __ (2006), and now vacate.
III
The Court of Appeals understood that it was simply construing EPA's 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act's single definition of "modification." The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text.
It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals's view of the statute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Appeals's efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written.
A
In applying the 1980 PSD regulations to Duke's conduct, the Court of Appeals thought that, by defining the term "modification" identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably adhered to under NSPS. But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as "effectively irrebuttable." 411 F. 3d, at 550. We also understand that "[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). Thus, the "natural presumption that identical words used in different parts of the same act are intended to have the same meaning ... is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." Ibid. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.
The point is the same even when the terms share a common statutory definition, if it is general enough, as we recognized in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). There the question was whether the term "employees" in §704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined the term "employee," 42 U. S. C. §2000e(f), but the definition was "consistent with either current or past employment," 519 U. S., at 342, and we held that "each section" of Title VII "must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute," id., at 343-344.
If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robinson is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own convenience should be counted in computing "wages" under the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U. S. C. §3301 et seq. Treasury Regulations made this value "includable in 'wages' as defined in FICA and FUTA, even though excludable from 'wages' under the substantially identical" statutory definition of "wages" for income-tax withholding purposes. 452 U. S., at 252. Although we ultimately held that the income tax treatment was the proper one across the board, we did not see it this way simply because a "substantially identical" definition of "wages" appeared in each of the different statutory provisions. Instead, we relied on a manifest "congressional concern for the interest of simplicity and ease of administration." Id., at 255 (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to "serve that interest," id., at 257, not for defying definitional identity.
In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), we rejected the notion that using the phrase "wages paid" in both "the discrete taxation and benefits eligibility contexts" can, standing alone, "compel symmetrical construction," id., at 213; we gave "substantial judicial deference" to the "longstanding," "reasonable," and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. Id., at 218-220. There is, then, no "effectively irrebuttable" presumption that the same defined term in different provisions of the same statute must "be interpreted identically." 411 F. 3d, at 550. Context counts.
It is true that the Clean Air Act did not merely repeat the term "modification" or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining "modification" for NSPS purposes. 42 U. S. C. §7479(2)(C). But that did not matter in Robinson, and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory implementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the customary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New York, 413 F. 3d, at 19 ("So far as appears, ... [this] incorporatio[n] by reference [is] the equivalent of Congress's having simply repeated in the [PSD] context the definitional language used before in the NSPS context"); compare 91 Stat. 745 (expressly incorporating in an unrelated provision of the 1977 amendments "the interpretative regulation of the [EPA] Administrator ... published in 41 Federal Register 55524-30" with specified exceptions); New York, supra, at 19 ("Congress's failure to use such an express incorporation of prior regulations for 'modification' cuts against" any suggestion that "Congress intended to incorporate" into the Act the "preexisting regulatory definition" of "modification"). Absent any iron rule to ignore the reasons for regulating PSD and NSPS "modifications" differently, EPA's construction need do no more than fall within the limits of what is reasonable, as set by the Act's common6 definition.
B
The Court of Appeals's reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regulations on "modification" simply cannot be taken to track the agency's regulatory definition under the NSPS.
True, the 1980 PSD regulations may be no seamless narrative, but they clearly do not define a "major modification" in terms of an increase in the "hourly emissions rate." On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change "that would result in a significant net emissions increase of any" regulated pollutant. 40 CFR §51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, "significant" and "net emissions increase," the rate is annual, not hourly. Each of the thresholds that quantify "significant" is described in "tons per year," §51.166(b)(23)(i), and a "net emissions increase" is an "increase in actual emissions" measured against an "average" prior emissions rate of so many "tons per year." §§51.166(b)(3) and (21)(ii). And what is further at odds with the idea that hourly rate is relevant is the mandate that "[a]ctual emissions shall be calculated using the unit's actual operating hours," §51.166(b)(21)(ii), since "actual emissions" must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which "hourly rate of emissions," 411 F. 3d, at 550 (emphasis deleted), is dispositive.
The reasons invoked by the Court of Appeals for its different view are no match for these textual differences. The appellate court cited two authorities ostensibly demonstrating that the 1980 PSD regulations "can be interpreted consistently" with the hourly emissions test, the first being the analysis of the District Court in this case. Id., at 549, n. 7. The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD "major modification" because a provision of the 1980 PSD regulations excluded an " 'increase in the hours of operation or in the production rate' " from the scope of " '[a] physical change or change in the method of operation.' " 278 F. Supp. 2d, at 640-641 (quoting 40 CFR §§51.166(b)(2)(iii)(f) and (3)(i)(a) (1987)). The District Court read this exclusion to require, in effect, that a source's hours of operation "be held constant" when preproject emissions are being compared with postproject emissions for the purpose of calculating the "net emissions increase." 278 F. Supp. 2d, at 640.
We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of "major modification": "[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase of any pollutant subject to regulation under the Act." §51.166(b)(2)(i); cf. New York, 413 F. 3d, at 11 ("[The statutory] definition requires both a change--whether physical or operational--and a resulting increase in emissions of a pollutant" (emphasis in original)); Wisconsin Electric Power Co. v. Reilly, 893 F. 2d 901, 907 (CA7 1990) (same). The exclusion of "increase in ... hours ... or ... production rate," §51.166(b)(2)(iii)(f), speaks to the first of these components ("physical change ... or change in ... method," §51.166(b)(2)(i)), but not to the second ("significant net emissions increase," ibid.). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD permit before they could simply adjust operating hours "would severely and unduly hamper the ability of any company to take advantage of favorable market conditions." 45 Fed. Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a "physical change or change in the method of operation." 40 CFR §51.166(b)(2)(iii).
But the District Court took this language a step further. It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent "physical change ... or change in the method of operation." §51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines "net emissions increase" in terms of "actual emissions," §51.166(b)(3), during "the unit's actual operating hours," §51.166(b)(21)(ii); see also 57 Fed. Reg. 32328 (1992) ("[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review ...").7
The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or operational change increasing a source's hours of operation, without an increase in the hourly emissions rate, cannot be a PSD "major modification." Duke continues to rely on those opinions here, asserting that "there are no contrary Agency pronouncements." Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conclusory statement supporting Duke's position. Nor, it seems, are they unembarrassed by any "contrary Agency pronouncements." See, e.g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Administrator for Air and Radiation (Sept. 9, 1988) (when "plans to increase production rate or hours of operation are inextricably intertwined with the physical changes planned," they are "precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source's environmental impact and should have to undergo PSD review scrutiny" (internal quotation marks and alterations omitted)); see also 57 Fed. Reg. 32328. In any event, it answers the citation of the Reich letters to realize that an isolated opinion of an agency official does not authorize a court to read a regulation inconsistently with its language.8
In sum, the text of the 1980 PSD regulations on "modification" doomed the Court of Appeals's attempt to equate those regulations with their NSPS counterpart. As a consequence, we have to see the Court of Appeals's construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of §307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review "could have been obtained" in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. See 42 U. S. C. §7607(b); see also United States v. Cinergy Corp., 458 F. 3d 705, 707-708 (CA7 2006); Wisconsin Electric Power Co., 893 F. 2d, at 914, n. 6. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of §307(b) ourselves.
IV
Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD "modification" as it has done, but it charges that the agency has taken inconsistent positions and is now "retroactively targeting twenty years of accepted practice." Brief for Respondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand.
* * *
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
ENVIRONMENTAL DEFENSE, et al., PETITIONERS v.
DUKE ENERGY CORPORATION et al.
1 on writ of certiorari to the united states court of
appeals for the fourth circuit
[April 2, 2007]
Justice Thomas, concurring in part.
I join all but Part III-A of the Court's opinion. I write separately to note my disagreement with the dicta in that portion of the opinion, which states that the statutory cross-reference does not mandate a singular regulatory construction.
The Prevention of Significant Deterioration (PSD) statute explicitly links the definition of the term "modification" to that term's definition in the New Source Performance Standard (NSPS) statute:
"The term 'construction' when used in connection with any source or facility, includes the modification (as defined in section 7411(a) of this title) of any source or facility." 42 U. S. C. §7479(2)(C).
Section 7411(a) contains the NSPS definition of "modification," which the parties agree is the relevant statutory definition of the term for both PSD and NSPS. Because of the cross-reference, the definitions of "modification" in PSD and NSPS are one and the same. The term "modification" therefore has the same meaning despite contextual variations in the two admittedly different statutory schemes. Congress' explicit linkage of PSD's definition of "modification" to NSPS' prevents the Environmental Protection Agency (EPA) from adopting differing regulatory definitions of "modification" for PSD and NSPS. Cf. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005) (concluding that an "explicit reference" to a previous statutory definition prohibits interpreting the same word differently).
Section 7479(2)(C)'s cross-reference carries more meaning than the mere repetition of the same word in a different statutory context. When Congress repeats the same word in a different statutory context, it is possible that Congress might have intended the context to alter the meaning of the word. See Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). No such possibility exists with §7479(2)(C). By incorporating NSPS' definition of "modification," Congress demonstrated that it did not intend for PSD's definition of "modification" to hinge on contextual factors unique to the PSD statutory scheme. Thus, United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), which analyzes the mere repetition of the same word in a different statutory context, carries little weight in this situation.
Likewise, this case differs from the circumstance we faced in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). In Robinson, we considered whether "employee," as used in §704(a) of Title VII of the Civil Rights Act of 1964, included former employees. We determined that under the clear language of the statute, certain statutory provisions using the term "employee" made sense only with respect to former employees or current employees, but not both. Id., at 342-343. Accordingly, upon analyzing the context of §704(a), we were compelled to conclude that the term "employee" included former employees. This case does not present a similar situation. The statute here includes a statutory cross-reference, which conveys a clear congressional intent to provide a common definition for the term "modification." And the contextual differences between PSD and NSPS do not compel different meanings for the term "modification." Robinson is, therefore, inapplicable.
Even if the cross-reference were merely the equivalent of repeating the words of the definition, we must still apply our usual presumption that the same words repeated in different parts of the same statute have the same meaning. See Atlantic Cleaners, supra, at 433; ante, at 9. That presumption has not been overcome here. While the broadly stated regulatory goals of PSD and NSPS differ, these contextual differences do not compel different definitions of "modification." That is, unlike in Robinson, reading the statutory definition in the separate contexts of PSD and NSPS does not require different interpretations of the term "modification." EPA demonstrated as much when it recently proposed regulations that would unify the regulatory definitions of "modification." See 70 Fed. Reg. 61083, n. 3 (2005) (terming the proposal "an appropriate exercise of our discretion" and stating that the unified definition better serves PSD's goals).
The majority opinion does little to overcome the presumption that the same words, when repeated, carry the same meaning. Instead, it explains that this Court's cases do not compel identical language to be interpreted identically in all situations. Granting that point, the majority still has the burden of stating why our general presumption does not control the outcome here. It has not done so.
2 FOOTNOTES
Footnote 1
EPA's 1975 NSPS regulations did not specify that the "rate" means the maximum rate possible for the technology, see 40 CFR §§60.14(a)-(b) (1977), but the parties all read the regulations this way. See Brief for Petitioners 2; Brief for United States 7; Brief for Respondent Duke 32. At another point in the NSPS regulations, a different definition of "modification" appeared: " 'Modification' means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility," §60.2(h); see also New York v. EPA, 413 F. 3d 3, 11-12 (CADC 2005) (per curiam) ("[N]either the 1975 regulation nor its preamble explained why EPA found it necessary to offer these two separate glosses on 'modification' ").
Footnote 2
Statutory PSD superseded a regulatory PSD scheme established by EPA in 1974. See 39 Fed. Reg. 42510. Under the regulations, the term "modification" was defined as "any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated." Id., at 42514.
Footnote 3
Although EPA had promulgated an earlier set of PSD regulations in 1978, 43 Fed. Reg. 26380, none of the parties argues that they govern the conduct at issue in this case.
Footnote 4
The United States argues that some of Duke's projects were governed by EPA's PSD regulations promulgated in 1992 rather than the 1980 PSD regulations. Brief for United States 20, n. 4. Duke disputes this. Brief for Respondent Duke 14, n. 4. Because the United States acknowledges that the two sets of regulations "did not materially differ with respect to the legal question at issue here," Brief for United States 20, n. 4, we will assume, as did the Court of Appeals and the District Court, that the 1980 PSD regulations control. 411 F. 3d, at 543, n. 1; United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 629 (MDNC 2003).
Footnote 5
The Court of Appeals noted that EPA was free to abandon the requirement that a "modification" be accompanied by an increase in the hourly rate of emissions, provided it did so for both the NSPS and PSD programs. 411 F. 3d, at 550-551. In other words, the Court of Appeals raised no question about the reasonableness of the definition of "modification" in the 1980 PSD regulations, apart from its deviation from the definition contained in NSPS regulations.
Footnote 6
Duke argues that the 1977 amendments intended to incorporate EPA's definition of "modification" under the 1974 regulatory PSD program. Brief for Respondent Duke 44; see also n. 2, supra. We find no support for this argument in the statutory text, which refers to the statutory NSPS definition rather than the regulatory PSD definition. Although Duke correctly points out that "Congress instructed that the bulk of the pre-existing rules 'shall remain in effect,' " Brief for Respondent Duke 44 (quoting 42 U. S. C. §7478(a)), this instruction was a temporary measure "[u]ntil such time as an applicable implementation plan is in effect," §7478(a). We therefore do not read this language as a restriction on EPA's authority to interpret the statutory PSD provisions reasonably in a manner that departs from the 1974 regulations. Duke also invokes Bragdon v. Abbott, 524 U. S. 624, 631 (1998), for the proposition that "use of the pre-existing term 'modification' 'carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.' " Brief for Respondent Duke 44. But this reasoning is unavailing here, given the existence of at least three distinct regulatory definitions of "modification" at the time of the 1977 amendments. See supra, at 2-3, and nn. 1, 2.
Footnote 7
Two Courts of Appeals agree. See United States v. Cinergy Corp., 458 F. 3d 705, 708 (CA7 2006) ("[M]erely running the plant closer to its maximum capacity is not a major modification because it does not involve either a physical change or a change in the method of operation. If, however, a physical change enables the plant to increase its output, then, according to the EPA's interpretation, the exclusion for merely operating the plant for longer hours is inapplicable" (emphasis in original)); Wisconsin Electric Power Co. v. Reilly, 893 F. 2d 901, 916, n. 11 (CA7 1990) (the regulatory exclusion for increases in the hours of operation "was provided to allow facilities to take advantage of fluctuating market conditions, not construction or modification activity"); Puerto Rican Cement Co. v. EPA, 889 F. 2d 292, 298 (CA1 1989) ("[T]here is no logical contradiction in rules that, on the one hand, permit firms using existing capacity simply to increase their output and, on the other, use the potential output of new capacity as a basis for calculating an increase in emissions levels" (emphasis in original)).
Footnote 8
Duke now offers an alternative argument for applying the hourly emissions test for the PSD program: before a project can become a "major modification" under the PSD regulations, 40 CFR §51.166(b)(2)(i) (1987), it must meet the definition of "modification" under the NSPS regulations, §60.14(a). That sounds right, but the language of the regulations does not support it. For example, it would be superfluous for PSD regulations to require a "major modification" to be "a physical change in or change in the method of operation," §51.166(b)(2)(i), if they presupposed that the NSPS definition of "modification," which contains the same prerequisite, §60.14(a), had already been satisfied. The NSPS and PSD regulations are complementary and not related as set to subset.
4
MASSACHUSETTS et al. v. ENVIRONMENTAL PROTECTION AGENCY et al.
1 certiorari to the united states court of appeals for the district of columbia circuit
No. 05-1120. Argued November 29, 2006--Decided April 2, 2007
Based on respected scientific opinion that a well-documented rise in global temperatures and attendant climatological and environmental changes have resulted from a significant increase in the atmospheric concentration of "greenhouse gases," a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating the emissions of four such gases, including carbon dioxide, under §202(a)(1) of the Clean Air Act, which requires that the EPA "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class ... of new motor vehicles ... which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution ... reasonably ... anticipated to endanger public health or welfare," 42 U. S. C. §7521(a)(1). The Act defines "air pollutant" to include "any air pollution agent ... , including any physical, chemical ... substance ... emitted into ... the ambient air." §7602(g). EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time because a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established. The agency further characterized any EPA regulation of motor-vehicle emissions as a piecemeal approach to climate change that would conflict with the President's comprehensive approach involving additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change, and might hamper the President's ability to persuade key developing nations to reduce emissions.
Petitioners, now joined by intervenor Massachusetts and other state and local governments, sought review in the D. C. Circuit. Although each of the three judges on the panel wrote separately, two of them agreed that the EPA Administrator properly exercised his discretion in denying the rulemaking petition. One judge concluded that the Administrator's exercise of "judgment" as to whether a pollutant could "reasonably be anticipated to endanger public health or welfare," §7521(a)(1), could be based on scientific uncertainty as well as other factors, including the concern that unilateral U. S. regulation of motor-vehicle emissions could weaken efforts to reduce other countries' greenhouse gas emissions. The second judge opined that petitioners had failed to demonstrate the particularized injury to them that is necessary to establish standing under Article III, but accepted the contrary view as the law of the case and joined the judgment on the merits as the closest to that which he preferred. The court therefore denied review.
Held:
1. Petitioners have standing to challenge the EPA's denial of their rulemaking petition. Pp. 12-23.
(a) This case suffers from none of the defects that would preclude it from being a justiciable Article III "Controvers[y]." See, e.g., Luther v. Borden, 7 How. 1. Moreover, the proper construction of a congressional statute is an eminently suitable question for federal-court resolution, and Congress has authorized precisely this type of challenge to EPA action, see 42 U. S. C. §7607(b)(1). Contrary to EPA's argument, standing doctrine presents no insuperable jurisdictional obstacle here. To demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561. However, a litigant to whom Congress has "accorded a procedural right to protect his concrete interests," id., at 573, n. 7--here, the right to challenge agency action unlawfully withheld, §7607(b)(1)--"can assert that right without meeting all the normal standards for redressability and immediacy," ibid. Only one petitioner needs to have standing to authorize review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2. Massachusetts has a special position and interest here. It is a sovereign State and not, as in Lujan, a private individual, and it actually owns a great deal of the territory alleged to be affected. The sovereign prerogatives to force reductions in greenhouse gas emissions, to negotiate emissions treaties with developing countries, and (in some circumstances) to exercise the police power to reduce motor-vehicle emissions are now lodged in the Federal Government. Because congress has ordered EPA to protect Massachusetts (among others) by prescribing applicable standards, §7521(a)(1), and has given Massachusetts a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious, §7607(b)(1), petitioners' submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both "actual" and "imminent," Lujan, 504 U. S., at 560, and there is a "substantial likelihood that the judicial relief requested" will prompt EPA to take steps to reduce that risk, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79. Pp. 12-17.
(b) The harms associated with climate change are serious and well recognized. The Government's own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events. That these changes are widely shared does not minimize Massachusetts' interest in the outcome of this litigation. See Federal Election Comm'n v. Akins, 524 U. S. 11, 24. According to petitioners' uncontested affidavits, global sea levels rose between 10 and 20 centimeters over the 20th century as a result of global warming and have already begun to swallow Massachusetts' coastal land. Remediation costs alone, moreover, could reach hundreds of millions of dollars. Pp. 17-19.
(c) Given EPA's failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, "contributes" to Massachusetts' injuries. EPA overstates its case in arguing that its decision not to regulate contributes so insignificantly to petitioners' injuries that it cannot be haled into federal court, and that there is no realistic possibility that the relief sought would mitigate global climate change and remedy petitioners' injuries, especially since predicted increases in emissions from China, India, and other developing nations will likely offset any marginal domestic decrease EPA regulation could bring about. Agencies, like legislatures, do not generally resolve massive problems in one fell swoop, see Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed, cf. SEC v. Chenery Corp., 332 U. S. 194, 202-203. That a first step might be tentative does not by itself negate federal-court jurisdiction. And reducing domestic automobile emissions is hardly tentative. Leaving aside the other greenhouse gases, the record indicates that the U. S. transportation sector emits an enormous quantity of carbon dioxide into the atmosphere. Pp. 20-21.
(d) While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See Larson v. Valente, 456 U. S. 228, 243, n. 15. Because of the enormous potential consequences, the fact that a remedy's effectiveness might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries are poised to substantially increase greenhouse gas emissions: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. The Court attaches considerable significance to EPA's espoused belief that global climate change must be addressed. Pp. 21-23.
2. The scope of the Court's review of the merits of the statutory issues is narrow. Although an agency's refusal to initiate enforcement proceedings is not ordinarily subject to judicial review, Heckler v. Chaney, 470 U. S. 821, there are key differences between nonenforcement and denials of rulemaking petitions that are, as in the present circumstances, expressly authorized. EPA concluded alternatively in its petition denial that it lacked authority under §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an "air pollutant" under §7602, and that, even if it possessed authority, it would decline to exercise it because regulation would conflict with other administration priorities. Because the Act expressly permits review of such an action, §7607(b)(1), this Court "may reverse [it if it finds it to be] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," §7607(d)(9). Pp. 24-25.
3. Because greenhouse gases fit well within the Act's capacious definition of "air pollutant," EPA has statutory authority to regulate emission of such gases from new motor vehicles. That definition--which includes "any air pollution agent ... , including any physical, chemical, ... substance ... emitted into ... the ambient air ... ," §7602(g) (emphasis added)--embraces all airborne compounds of whatever stripe. Moreover, carbon dioxide and other greenhouse gases are undoubtedly "physical [and] chemical ... substance[s]." Ibid. EPA's reliance on postenactment congressional actions and deliberations it views as tantamount to a command to refrain from regulating greenhouse gas emissions is unavailing. Even if postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA identifies nothing suggesting that Congress meant to curtail EPA's power to treat greenhouse gases as air pollutants. The Court has no difficulty reconciling Congress' various efforts to promote interagency collaboration and research to better understand climate change with the agency's pre-existing mandate to regulate "any air pollutant" that may endanger the public welfare. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133, distinguished. Also unpersuasive is EPA's argument that its regulation of motor-vehicle carbon dioxide emissions would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to the Department of Transportation. The fact that DOT's mandate to promote energy efficiency by setting mileage standards may overlap with EPA's environmental responsibilities in no way licenses EPA to shirk its duty to protect the public "health" and "welfare," §7521(a)(1). Pp. 25-30.
4. EPA's alternative basis for its decision--that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time--rests on reasoning divorced from the statutory text. While the statute conditions EPA action on its formation of a "judgment," that judgment must relate to whether an air pollutant "cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." §7601(a)(1). Under the Act's clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the President's ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore "arbitrary, capricious, or otherwise not in accordance with law," §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. Pp. 30-32.
415 F. 3d 50, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
MASSACHUSETTS, et al., PETITIONERS v. ENVIRON-
MENTAL PROTECTION AGENCY et al.
1 on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[April 2, 2007]
Justice Stevens delivered the opinion of the Court.
A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species--the most important species--of a "greenhouse gas."
Calling global warming "the most pressing environmental challenge of our time,"1 a group of States,2 local governments,3 and private organizations,4 alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of §202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.
In response, EPA, supported by 10 intervening States5 and six trade associations,6 correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006).
I
Section 202(a)(1) of the Clean Air Act, as added by Pub. L. 89-272, §101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690 and 91 Stat. 791, 42 U. S. C. §7521(a)(1), provides:
"The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ... ."7
The Act defines "air pollutant" to include "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air." §7602(g). "Welfare" is also defined broadly: among other things, it includes "effects on ... weather ... and climate." §7602(h).
When Congress enacted these provisions, the study of climate change was in its infancy.8 In 1959, shortly after the U. S. Weather Bureau began monitoring atmospheric carbon dioxide levels, an observatory in Mauna Loa, Hawaii, recorded a mean level of 316 parts per million. This was well above the highest carbon dioxide concentration--no more than 300 parts per million--revealed in the 420,000-year-old ice-core record.9 By the time Congress drafted §202(a)(1) in 1970, carbon dioxide levels had reached 325 parts per million.10
In the late 1970's, the Federal Government began devoting serious attention to the possibility that carbon dioxide emissions associated with human activity could provoke climate change. In 1978, Congress enacted the National Climate Program Act, 92 Stat. 601, which required the President to establish a program to "assist the Nation and the world to understand and respond to natural and man-induced climate processes and their implications," id., §3. President Carter, in turn, asked the National Research Council, the working arm of the National Academy of Sciences, to investigate the subject. The Council's response was unequivocal: "If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible... . A wait-and-see policy may mean waiting until it is too late."11
Congress next addressed the issue in 1987, when it enacted the Global Climate Protection Act, Title XI of Pub. L. 100-204, 101 Stat. 1407, note following 15 U. S. C. §2901. Finding that "manmade pollution--the release of carbon dioxide, chlorofluorocarbons, methane, and other trace gases into the atmosphere--may be producing a long-term and substantial increase in the average temperature on Earth," §1102(1), 101 Stat. 1408, Congress directed EPA to propose to Congress a "coordinated national policy on global climate change," §1103(b), and ordered the Secretary of State to work "through the channels of multilateral diplomacy" and coordinate diplomatic efforts to combat global warming, §1103(c). Congress emphasized that "ongoing pollution and deforestation may be contributing now to an irreversible process" and that "[n]ecessary actions must be identified and implemented in time to protect the climate." §1102(4).
Meanwhile, the scientific understanding of climate change progressed. In 1990, the Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body organized under the auspices of the United Nations, published its first comprehensive report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded that "emissions resulting from human activities are substantially increasing the atmospheric concentrations of ... greenhouse gases [which] will enhance the greenhouse effect, resulting on average in an additional warming of the Earth's surface."12
Responding to the IPCC report, the United Nations convened the "Earth Summit" in 1992 in Rio de Janeiro. The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of "prevent[ing] dangerous anthropogenic [i.e., human-induced] interference with the [Earth's] climate system."13 S. Treaty Doc. No. 102-38, Art. 2, p. 5 (1992). The Senate unanimously ratified the treaty.
Some five years later--after the IPCC issued a second comprehensive report in 1995 concluding that "[t]he balance of evidence suggests there is a discernible human influence on global climate"14--the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions. Because those targets did not apply to developing and heavily polluting nations such as China and India, the Senate unanimously passed a resolution expressing its sense that the United States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol to the Senate for ratification.
II
On October 20, 1999, a group of 19 private organizations15 filed a rulemaking petition asking EPA to regulate "greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act." App. 5. Petitioners maintained that 1998 was the "warmest year on record"; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are "heat trapping greenhouse gases"; that greenhouse gas emissions have significantly accelerated climate change; and that the IPCC's 1995 report warned that "carbon dioxide remains the most important contributor to [man-made] forcing of climate change." Id., at 13 (internal quotation marks omitted). The petition further alleged that climate change will have serious adverse effects on human health and the environment. Id., at 22-35. As to EPA's statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide. See id., at 18, n. 21. In 1998, Jonathan Z. Cannon, then EPA's General Counsel, prepared a legal opinion concluding that "CO2 emissions are within the scope of EPA's authority to regulate," even as he recognized that EPA had so far declined to exercise that authority. Id., at 54 (memorandum to Carol M. Browner, Administrator (Apr. 10, 1998) (hereinafter Cannon memorandum)). Cannon's successor, Gary S. Guzy, reiterated that opinion before a congressional committee just two weeks before the rulemaking petition was filed. See id., at 61.
Fifteen months after the petition's submission, EPA requested public comment on "all the issues raised in [the] petition," adding a "particular" request for comments on "any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA's consideration of this petition." 66 Fed. Reg. 7486, 7487 (2001). EPA received more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924 (2003).
Before the close of the comment period, the White House sought "assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties" from the National Research Council, asking for a response "as soon as possible." App. 213. The result was a 2001 report titled Climate Change: An Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC report, concluded that "[g]reenhouse gases are accumulating in Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising." NRC Report 1.
On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg. 52922. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925-52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time, id., at 52929-52931.
In concluding that it lacked statutory authority over greenhouse gases, EPA observed that Congress "was well aware of the global climate change issue when it last comprehensively amended the [Clean Air Act] in 1990," yet it declined to adopt a proposed amendment establishing binding emissions limitations. Id., at 52926. Congress instead chose to authorize further investigation into climate change. Ibid. (citing §§103(g) and 602(e) of the Clean Air Act Amendments of 1990, 104 Stat. 2652, 2703, 42 U. S. C. §§7403(g)(1) and 7671a(e)). EPA further reasoned that Congress' "specially tailored solutions to global atmospheric issues," 68 Fed. Reg. 52926--in particular, its 1990 enactment of a comprehensive scheme to regulate pollutants that depleted the ozone layer, see Title VI, 104 Stat. 2649, 42 U. S. C. §§7671-7671q--counseled against reading the general authorization of §202(a)(1) to confer regulatory authority over greenhouse gases.
EPA stated that it was "urged on in this view" by this Court's decision in FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000). In that case, relying on "tobacco['s] unique political history," id., at 159, we invalidated the Food and Drug Administration's reliance on its general authority to regulate drugs as a basis for asserting jurisdiction over an "industry constituting a significant portion of the American economy," ibid.
EPA reasoned that climate change had its own "political history": Congress designed the original Clean Air Act to address local air pollutants rather than a substance that "is fairly consistent in its concentration throughout the world's atmosphere," 68 Fed. Reg. 52927 (emphasis added); declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid. (citing H. R. 5966, 101st Cong., 2d Sess. (1990)); and addressed global climate change in other legislation, 68 Fed. Reg. 52927. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the agency to address it.
Having reached that conclusion, EPA believed it followed that greenhouse gases cannot be "air pollutants" within the meaning of the Act. See ibid. ("It follows from this conclusion, that [greenhouse gases], as such, are not air pollutants under the [Clean Air Act's] regulatory provisions ..."). The agency bolstered this conclusion by explaining that if carbon dioxide were an air pollutant, the only feasible method of reducing tailpipe emissions would be to improve fuel economy. But because Congress has already created detailed mandatory fuel economy standards subject to Department of Transportation (DOT) administration, the agency concluded that EPA regulation would either conflict with those standards or be superfluous. Id., at 52929.
Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report's statement that a causal link between the two " 'cannot be unequivocally established.' " Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930.
The agency furthermore characterized any EPA regulation of motor-vehicle emissions as a "piecemeal approach" to climate change, id., at 52931, and stated that such regulation would conflict with the President's "comprehensive approach" to the problem, id., at 52932. That approach involves additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change--not actual regulation. Id., at 52932-52933. According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also hamper the President's ability to persuade key developing countries to reduce greenhouse gas emissions. Id., at 52931.
III
Petitioners, now joined by intervenor States and local governments, sought review of EPA's order in the United States Court of Appeals for the District of Columbia Circuit.16 Although each of the three judges on the panel wrote a separate opinion, two judges agreed "that the EPA Administrator properly exercised his discretion under §202(a)(1) in denying the petition for rule making." 415 F. 3d 50, 58 (2005). The court therefore denied the petition for review.
In his opinion announcing the court's judgment, Judge Randolph avoided a definitive ruling as to petitioners' standing, id., at 56, reasoning that it was permissible to proceed to the merits because the standing and the merits inquiries "overlap[ped]," ibid. Assuming without deciding that the statute authorized the EPA Administrator to regulate greenhouse gas emissions that "in his judgment" may "reasonably be anticipated to endanger public health or welfare," 42 U. S. C. §7521(a)(1), Judge Randolph concluded that the exercise of that judgment need not be based solely on scientific evidence, but may also be informed by the sort of policy judgments that motivate congressional action. 415 F. 3d, at 58. Given that framework, it was reasonable for EPA to base its decision on scientific uncertainty as well as on other factors, including the concern that unilateral regulation of U. S. motor-vehicle emissions could weaken efforts to reduce greenhouse gas emissions from other countries. Ibid.
Judge Sentelle wrote separately because he believed petitioners failed to "demonstrat[e] the element of injury necessary to establish standing under Article III." Id., at 59 (opinion dissenting in part and concurring in judgment). In his view, they had alleged that global warming is "harmful to humanity at large," but could not allege "particularized injuries" to themselves. Id., at 60 (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992)). While he dissented on standing, however, he accepted the contrary view as the law of the case and joined Judge Randolph's judgment on the merits as the closest to that which he preferred. 415 F. 3d, at 60-61.
Judge Tatel dissented. Emphasizing that EPA nowhere challenged the factual basis of petitioners' affidavits, id., at 66, he concluded that at least Massachusetts had "satisfied each element of Article III standing--injury, causation, and redressability," id., at 64. In Judge Tatel's view, the " 'substantial probability,' " id., at 66, that projected rises in sea level would lead to serious loss of coastal property was a "far cry" from the kind of generalized harm insufficient to ground Article III jurisdiction. Id., at 65. He found that petitioners' affidavits more than adequately supported the conclusion that EPA's failure to curb greenhouse gas emissions contributed to the sea level changes that threatened Massachusetts' coastal property. Ibid. As to redressability, he observed that one of petitioners' experts, a former EPA climatologist, stated that " '[a]chievable reductions in emissions of CO2 and other [greenhouse gases] from U. S. motor vehicles would ... delay and moderate many of the adverse impacts of global warming.' " Ibid. (quoting declaration of Michael MacCracken, former Executive Director, U. S. Global Change Research Program ¶5(e) (hereinafter MacCracken Decl.), available in 2 Petitioners' Standing Appendix in No. 03-1361, etc., (CADC), p. 209 (Stdg. App.)). He further noted that the one-time director of EPA's motor-vehicle pollution control efforts stated in an affidavit that enforceable emission standards would lead to the development of new technologies that " 'would gradually be mandated by other countries around the world.' " 415 F. 3d, at 66 (quoting declaration of Michael Walsh ¶¶7-8, 10, Stdg. App. 309-310, 311). On the merits, Judge Tatel explained at length why he believed the text of the statute provided EPA with authority to regulate greenhouse gas emissions, and why its policy concerns did not justify its refusal to exercise that authority. 415 F. 3d, at 67-82.
IV
Article III of the Constitution limits federal-court jurisdiction to "Cases" and "Controversies." Those two words confine "the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U. S. 83, 95 (1968). It is therefore familiar learning that no justiciable "controversy" exists when parties seek adjudication of a political question, Luther v. Borden, 7 How. 1 (1849), when they ask for an advisory opinion, Hayburn's Case, 2 Dall. 409 (1792), see also Clinton v. Jones, 520 U. S. 681, 700, n. 33 (1997), or when the question sought to be adjudicated has been mooted by subsequent developments, California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893). This case suffers from none of these defects.
The parties' dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U. S. C. §7607(b)(1). That authorization is of critical importance to the standing inquiry: "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Lujan, 504 U. S., at 580 (Kennedy, J., concurring in part and concurring in judgment). "In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit." Ibid. We will not, therefore, "entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws." Id., at 581.
EPA maintains that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. We do not agree. At bottom, "the gist of the question of standing" is whether petitioners have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." Baker v. Carr, 369 U. S. 186, 204 (1962). As Justice Kennedy explained in his Lujan concurrence:
"While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented ... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." 504 U. S., at 581 (internal quotation marks omitted).
To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. See id., at 560-561. However, a litigant to whom Congress has "accorded a procedural right to protect his concrete interests," id., at 572, n. 7--here, the right to challenge agency action unlawfully withheld, §7607(b)(1)--"can assert that right without meeting all the normal standards for redressability and immediacy," ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Ibid.; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F. 3d 89, 94-95 (CADC 2002) ("A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result").
Only one of the petitioners needs to have standing to permit us to consider the petition for review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006). We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.
Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), a case in which Georgia sought to protect its citizens from air pollution originating outside its borders:
"The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."
Just as Georgia's "independent interest ... in all the earth and air within its domain" supported federal jurisdiction a century ago, so too does Massachusetts' well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine, 527 U. S. 706, 715 (1999) (observing that in the federal system, the States "are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty"). That Massachusetts does in fact own a great deal of the "territory alleged to be affected" only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.
When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) ("One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers").
These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the "emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. §7607(b)(1). Given that procedural right and Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.17
With that in mind, it is clear that petitioners' submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both "actual" and "imminent." Lujan, 504 U. S., at 560 (internal quotation marks omitted). There is, moreover, a "substantial likelihood that the judicial relief requested" will prompt EPA to take steps to reduce that risk. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79 (1978).
The Injury
The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself--which EPA regards as an "objective and independent assessment of the relevant science," 68 Fed. Reg. 52930--identifies a number of environmental changes that have already inflicted significant harms, including "the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years ... ." NRC Report 16.
Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, "qualified scientific experts involved in climate change research" have reached a "strong consensus" that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. ¶15, Stdg. App. 207, "severe and irreversible changes to natural ecosystems," id., ¶5(d), at 209, a "significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences," ibid., and an increase in the spread of disease, id., ¶28, at 218-219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., ¶¶23-25, at 216-217.18
That these climate-change risks are "widely shared" does not minimize Massachusetts' interest in the outcome of this litigation. See Federal Election Comm'n v. Akins, 524 U. S. 11, 24 (1998) ("[W]here a harm is concrete, though widely shared, the Court has found 'injury in fact' "). According to petitioners' unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl. ¶5(c), Stdg. App. 208. These rising seas have already begun to swallow Massachusetts' coastal land. Id., at 196 (declaration of Paul H. Kirshen ¶5), 216 (MacCracken Decl. ¶23). Because the Commonwealth "owns a substantial portion of the state's coastal property," id., at 171 (declaration of Karst R. Hoogeboom ¶4),19 it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be "either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events." Id., ¶6, at 172.20 Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., ¶7, at 172; see also Kirshen Decl. ¶12, at 198.21
Causation
EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA's refusal to regulate such emissions "contributes" to Massachusetts' injuries.
EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners' injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.
But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955) ("[A] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind"). They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed. Cf. SEC v. Chenery Corp., 332 U. S. 194, 202 (1947) ("Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations"). That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.
And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere--according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. ¶30, Stdg. App. 219. That accounts for more than 6% of worldwide carbon dioxide emissions. Id., at 232 (Oppenheimer Decl. ¶3); see also MacCracken Decl. ¶31, at 220. To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country's total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China.22 Judged by any standard, U. S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.
The Remedy
While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See also Larson v. Valente, 456 U. S. 228, 244, n. 15 (1982) ("[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury"). Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant.23 Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.
We moreover attach considerable significance to EPA's "agree[ment] with the President that 'we must address the issue of global climate change,' " 68 Fed. Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA's ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, "EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming." 415 F. 3d, at 66.
In sum--at least according to petitioners' uncontested affidavits--the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge the EPA's denial of their rulemaking petition.24
V
The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). That discretion is at its height when the agency decides not to bring an enforcement action. Therefore, in Heckler v. Chaney, 470 U. S. 821 (1985), we held that an agency's refusal to initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate remains, however, as to the rigor with which we review an agency's denial of a petition for rulemaking.
There are key differences between a denial of a petition for rulemaking and an agency's decision not to initiate an enforcement action. See American Horse Protection Assn., Inc. v. Lyng, 812 F. 2d 1, 3-4 (CADC 1987). In contrast to nonenforcement decisions, agency refusals to initiate rulemaking "are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation." Id., at 4; see also 5 U. S. C. §555(e). They moreover arise out of denials of petitions for rulemaking which (at least in the circumstances here) the affected party had an undoubted procedural right to file in the first instance. Refusals to promulgate rules are thus susceptible to judicial review, though such review is "extremely limited" and "highly deferential." National Customs Brokers & Forwarders Assn of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989).
EPA concluded in its denial of the petition for rulemaking that it lacked authority under 42 U. S. C. §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an "air pollutant" as that term is defined in §7602. In the alternative, it concluded that even if it possessed authority, it would decline to do so because regulation would conflict with other administration priorities. As discussed earlier, the Clean Air Act expressly permits review of such an action. §7607(b)(1). We therefore "may reverse any such action found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." §7607(d)(9).
VI
On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an "air pollutant" within the meaning of the provision.
The statutory text forecloses EPA's reading. The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... ." §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any."25 Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air." The statute is unambiguous.26
Rather than relying on statutory text, EPA invokes postenactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977.27 And unlike EPA, we have no difficulty reconciling Congress' various efforts to promote interagency collaboration and research to better understand climate change28 with the agency's pre-existing mandate to regulate "any air pollutant" that may endanger the public welfare. See 42 U. S. C. §7601(a)(1). Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it.29
EPA's reliance on Brown & Williamson Tobacco Corp., 529 U. S. 120, is similarly misplaced. In holding that tobacco products are not "drugs" or "devices" subject to Food and Drug Administration (FDA) regulation pursuant to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S., at 133, we found critical at least two considerations that have no counterpart in this case.
First, we thought it unlikely that Congress meant to ban tobacco products, which the FDCA would have required had such products been classified as "drugs" or "devices." Id., at 135-137. Here, in contrast, EPA jurisdiction would lead to no such extreme measures. EPA would only regulate emissions, and even then, it would have to delay any action "to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance," §7521(a)(2). However much a ban on tobacco products clashed with the "common sense" intuition that Congress never meant to remove those products from circulation, Brown & Williamson, 529 U. S., at 133, there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter.
Second, in Brown & Williamson we pointed to an unbroken series of congressional enactments that made sense only if adopted "against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco." Id., at 144. We can point to no such enactments here: EPA has not identified any congressional action that conflicts in any way with the regulation of greenhouse gases from new motor vehicles. Even if it had, Congress could not have acted against a regulatory "backdrop" of disclaimers of regulatory authority. Prior to the order that provoked this litigation, EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. See App. 54 (Cannon memorandum). There is no reason, much less a compelling reason, to accept EPA's invitation to read ambiguity into a clear statute.
EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's "health" and "welfare," 42 U. S. C. §7521(a)(1), a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. See Energy Policy and Conservation Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.
While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) ("[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth" (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act's capacious definition of "air pollutant," we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.
VII
The alternative basis for EPA's decision--that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time--rests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPA's authority on its formation of a "judgment," 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant "cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare," ibid. Put another way, the use of the word "judgment" is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.
If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating that "[EPA] shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class of new motor vehicles"). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.
EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, 68 Fed. Reg. 52932, that regulating greenhouse gases might impair the President's ability to negotiate with "key developing nations" to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect "an inefficient, piecemeal approach to address the climate change issue," ibid.
Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Department--not EPA--to formulate United States foreign policy with reference to environmental matters relating to climate. See §1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. §1103(b).
Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930-52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty--which, contrary to Justice Scalia's apparent belief, post, at 5-8, is in fact all that it said, see 68 Fed. Reg. 52929 ("We do not believe . . . that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time" (emphasis added))--is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding.
In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, ... or otherwise not in accordance with law." 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.
VIII
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
MASSACHUSETTS, et al., PETITIONERS v. ENVIRON-
MENTAL PROTECTION AGENCY et al.
1 on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[April 2, 2007]
Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.
Global warming may be a "crisis," even "the most pressing environmental problem of our time." Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.
Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government's alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court's standing jurisprudence simply recognizes that redress of grievances of the sort at issue here "is the function of Congress and the Chief Executive," not the federal courts. Lujan v. Defenders of Wildlife, 504 U. S. 555, 576 (1992). I would vacate the judgment below and remand for dismissal of the petitions for review.
I
Article III, §2, of the Constitution limits the federal judicial power to the adjudication of "Cases" and "Controversies." "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 547 U. S. ___, ___ (2006) (slip op., at 5). "Standing to sue is part of the common understanding of what it takes to make a justiciable case," Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998), and has been described as "an essential and unchanging part of the case-or-controversy requirement of Article III," Defenders of Wildlife, supra, at 560.
Our modern framework for addressing standing is familiar: "A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." DaimlerChrysler, supra, at ___ (slip op., at 6) (quoting Allen v. Wright, 468 U. S. 737, 751 (1984) (internal quotation marks omitted)). Applying that standard here, petitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency's failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.
Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that "States are not normal litigants for the purposes of invoking federal jurisdiction," and that given "Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis." Ante, at 15, 17 (emphasis added).
Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such "special solicitude" is conspicuously absent from the Court's opinion. The general judicial review provision cited by the Court, 42 U. S. C. §7607(b)(1), affords States no special rights or status. The Court states that "Congress has ordered EPA to protect Massachusetts (among others)" through the statutory provision at issue, §7521(a)(1), and that "Congress has . . . recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious." Ante, at 16. The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute. Congress knows how to do that when it wants to, see, e.g., §7426(b) (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same.
Nor does the case law cited by the Court provide any support for the notion that Article III somehow implicitly treats public and private litigants differently. The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court's analysis hinges on Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907)--a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing.
In Tennessee Copper, the State of Georgia sought to enjoin copper companies in neighboring Tennessee from discharging pollutants that were inflicting "a wholesale destruction of forests, orchards and crops" in bordering Georgia counties. Id., at 236. Although the State owned very little of the territory allegedly affected, the Court reasoned that Georgia--in its capacity as a "quasi-sovereign"--"has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain." Id., at 237. The Court explained that while "[t]he very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief [were] wanting," a State "is not lightly to be required to give up quasi-sovereign rights for pay." Ibid. Thus while a complaining private litigant would have to make do with a legal remedy--one "for pay"--the State was entitled to equitable relief. See id., at 237-238.
In contrast to the present case, there was no question in Tennessee Copper about Article III injury. See id., at 238-239. There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had "an action at law." Id., at 238. Tennessee Copper has since stood for nothing more than a State's right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. See, e.g., Maryland v. Louisiana, 451 U. S. 725, 737 (1981). Nothing about a State's ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.
A claim of parens patriae standing is distinct from an allegation of direct injury. See Wyoming v. Oklahoma, 502 U. S. 437, 448-449, 451 (1992). Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a "quasi-sovereign interest" "apart from the interests of particular private parties." Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) (emphasis added) (cited ante, at 16). Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens patriae must still show that its citizens satisfy Article III. Focusing on Massachusetts's interests as quasi-sovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing--a quasi-sovereign interest--and converts it into a sufficient showing for purposes of Article III.
What is more, the Court's reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to "special solicitude" due to its "quasi-sovereign interests," ante, at 17, but then applies our Article III standing test to the asserted injury of the State's loss of coastal property. See ante, at 19 (concluding that Massachusetts "has alleged a particularized injury in its capacity as a landowner" (emphasis added)). In the context of parens patriae standing, however, we have characterized state ownership of land as a "nonsovereign interes[t]" because a State "is likely to have the same interests as other similarly situated proprietors." Alfred L. Snapp & Son, supra, at 601.
On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State's standing to assert a quasi-sovereign interest--as opposed to a direct injury--against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae "for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them." Massachusetts v. Mellon, 262 U. S. 447, 485-486 (1923) (citation omitted); see also Alfred L. Snapp & Son, supra, at 610, n. 16.
All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either. Given that one purpose of the standing requirement is " 'to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination,' " ante, at 13-14 (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)), it is ironic that the Court today adopts a new theory of Article III standing for States without the benefit of briefing or argument on the point.1
II
It is not at all clear how the Court's "special solicitude" for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as a State cannot compensate for petitioners' failure to demonstrate injury in fact, causation, and redressability.
When the Court actually applies the three-part test, it focuses, as did the dissent below, see 415 F. 3d 50, 64 (CADC 2005) (opinion of Tatel, J.), on the State's asserted loss of coastal land as the injury in fact. If petitioners rely on loss of land as the Article III injury, however, they must ground the rest of the standing analysis in that specific injury. That alleged injury must be "concrete and particularized," Defenders of Wildlife, 504 U. S., at 560, and "distinct and palpable," Allen, 468 U. S., at 751 (internal quotation marks omitted). Central to this concept of "particularized" injury is the requirement that a plaintiff be affected in a "personal and individual way," Defenders of Wildlife, 504 U. S., at 560, n. 1, and seek relief that "directly and tangibly benefits him" in a manner distinct from its impact on "the public at large," id., at 573-574. Without "particularized injury, there can be no confidence of 'a real need to exercise the power of judicial review' or that relief can be framed 'no broader than required by the precise facts to which the court's ruling would be applied.' " Warth v. Seldin, 422 U. S. 490, 508 (1975) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-222 (1974)).
The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon "harmful to humanity at large," 415 F. 3d, at 60 (Sentelle, J., dissenting in part and concurring in judgment), and the redress petitioners seek is focused no more on them than on the public generally--it is literally to change the atmosphere around the world.
If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, supra, at 560 (internal quotation marks omitted), "real and immediate," Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (internal quotation marks omitted), and "certainly impending," Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted).
As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "[t]hese rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 19. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a "significan[t]" non-global-warming cause of Boston's rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.
The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 19-20. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2 (while the concept of " 'imminence' " in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, supra, at 158. (internal quotation marks omitted; emphasis added).
III
Petitioners' reliance on Massachusetts's loss of coastal land as their injury in fact for standing purposes creates insurmountable problems for them with respect to causation and redressability. To establish standing, petitioners must show a causal connection between that specific injury and the lack of new motor vehicle greenhouse gas emission standards, and that the promulgation of such standards would likely redress that injury. As is often the case, the questions of causation and redressability overlap. See Allen, 468 U. S., at 753, n. 19 (observing that the two requirements were "initially articulated by this Court as two facets of a single causation requirement" (internal quotation marks omitted)). And importantly, when a party is challenging the Government's allegedly unlawful regulation, or lack of regulation, of a third party, satisfying the causation and redressability requirements becomes "substantially more difficult." Defenders of Wildlife, supra, at 562 (internal quotation marks omitted); see also Warth, supra, at 504-505.
Petitioners view the relationship between their injuries and EPA's failure to promulgate new motor vehicle greenhouse gas emission standards as simple and direct: Domestic motor vehicles emit carbon dioxide and other greenhouse gases. Worldwide emissions of greenhouse gases contribute to global warming and therefore also to petitioners' alleged injuries. Without the new vehicle standards, greenhouse gas emissions--and therefore global warming and its attendant harms--have been higher than they otherwise would have been; once EPA changes course, the trend will be reversed.
The Court ignores the complexities of global warming, and does so by now disregarding the "particularized" injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. First, it is important to recognize the extent of the emissions at issue here. Because local greenhouse gas emissions disperse throughout the atmosphere and remain there for anywhere from 50 to 200 years, it is global emissions data that are relevant. See App. to Pet. for Cert. A-73. According to one of petitioners' declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide emissions and 4 percent of global greenhouse gas emissions. Stdg. App. 232. The amount of global emissions at issue here is smaller still; §202(a)(1) of the Clean Air Act covers only new motor vehicles and new motor vehicle engines, so petitioners' desired emission standards might reduce only a fraction of 4 percent of global emissions.
This gets us only to the relevant greenhouse gas emissions; linking them to global warming and ultimately to petitioners' alleged injuries next requires consideration of further complexities. As EPA explained in its denial of petitioners' request for rulemaking,
"predicting future climate change necessarily involves a complex web of economic and physical factors including: our ability to predict future global anthropogenic emissions of [greenhouse gases] and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts)." App. to Pet. for Cert. A-83 through A-84.
Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners' alleged injury--the loss of Massachusetts coastal land--the connection is far too speculative to establish causation.
IV
Redressability is even more problematic. To the tenuous link between petitioners' alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, "developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century," ante, at 23, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners' desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world.
Petitioners offer declarations attempting to address this uncertainty, contending that "[i]f the U. S. takes steps to reduce motor vehicle emissions, other countries are very likely to take similar actions regarding their own motor vehicles using technology developed in response to the U. S. program." Stdg. App. 220; see also id., at 311-312. In other words, do not worry that other countries will contribute far more to global warming than will U. S. automobile emissions; someone is bound to invent something, and places like the People's Republic of China or India will surely require use of the new technology, regardless of cost. The Court previously has explained that when the existence of an element of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," a party must present facts supporting an assertion that the actor will proceed in such a manner. Defenders of Wildlife, 504 U. S., at 562 (quoting ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of Kennedy, J.); internal quotation marks omitted). The declarations' conclusory (not to say fanciful) statements do not even come close.
No matter, the Court reasons, because any decrease in domestic emissions will "slow the pace of global emissions increases, no matter what happens elsewhere." Ante, at 23. Every little bit helps, so Massachusetts can sue over any little bit.
The Court's sleight-of-hand is in failing to link up the different elements of the three-part standing test. What must be likely to be redressed is the particular injury in fact. The injury the Court looks to is the asserted loss of land. The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts's injury. But even if regulation does reduce emissions--to some indeterminate degree, given events elsewhere in the world--the Court never explains why that makes it likely that the injury in fact--the loss of land--will be redressed. Schoolchildren know that a kingdom might be lost "all for the want of a horseshoe nail," but "likely" redressability is a different matter. The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land.
V
Petitioners' difficulty in demonstrating causation and redressability is not surprising given the evident mismatch between the source of their alleged injury--catastrophic global warming--and the narrow subject matter of the Clean Air Act provision at issue in this suit. The mismatch suggests that petitioners' true goal for this litigation may be more symbolic than anything else. The constitutional role of the courts, however, is to decide concrete cases--not to serve as a convenient forum for policy debates. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) ("[Standing] tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to
a realistic appreciation of the consequences of judicial action").
When dealing with legal doctrine phrased in terms of what is "fairly" traceable or "likely" to be redressed, it is perhaps not surprising that the matter is subject to some debate. But in considering how loosely or rigorously to define those adverbs, it is vital to keep in mind the purpose of the inquiry. The limitation of the judicial power to cases and controversies "is crucial in maintaining the tripartite allocation of power set forth in the Constitution." DaimlerChrysler, 547 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). In my view, the Court today--addressing Article III's "core component of standing," Defenders of Wildlife, supra, at 560--fails to take this limitation seriously.
To be fair, it is not the first time the Court has done so. Today's decision recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). SCRAP involved "[p]robably the most attenuated injury conferring Art. III standing" and "surely went to the very outer limit of the law"--until today. Whitmore, 495 U. S., at 158-159; see also Lujan v. National Wildlife Federation, 497 U. S. 871, 889 (1990) (SCRAP "has never since been emulated by this Court"). In SCRAP, the Court based an environmental group's standing to challenge a railroad freight rate surcharge on the group's allegation that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area, resulting in increased refuse that might find its way into area parks, harming the group's members. 412 U. S., at 688.
Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today's decision is SCRAP for a new generation.2
Perhaps the Court recognizes as much. How else to explain its need to devise a new doctrine of state standing to support its result? The good news is that the Court's "special solicitude" for Massachusetts limits the future applicability of the diluted standing requirements applied in this case. The bad news is that the Court's self-professed relaxation of those Article III requirements has caused us to transgress "the proper--and properly limited--role of the courts in a democratic society." Allen, 468 U. S., at 750 (internal quotation marks omitted).
I respectfully dissent.
MASSACHUSETTS, et al., PETITIONERS v. ENVIRON-
MENTAL PROTECTION AGENCY et al.
1 on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[April 2, 2007]
Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting.
I join The Chief Justice's opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits.
I
1 A
The provision of law at the heart of this case is §202(a)(1) of the Clean Air Act (CAA), which provides that the Administrator of the Environmental Protection Agency (EPA) "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1) (emphasis added). As the Court recognizes, the statute "condition[s] the exercise of EPA's authority on its formation of a 'judgment.' " Ante, at 30. There is no dispute that the Administrator has made no such judgment in this case. See ante, at 32 ("We need not and do not reach the question whether on remand EPA must make an endangerment finding"); 68 Fed. 52929 (2003) ("[N]o Administrator has made a finding under any of the CAA's regulatory provisions that CO2 meets the applicable statutory criteria for regulation").
The question thus arises: Does anything require the Administrator to make a "judgment" whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When Congress wishes to make private action force an agency's hand, it knows how to do so. See, e.g., Brock v. Pierce County, 476 U. S. 253, 254-255 (1986) (discussing the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. §816(b) (1976 ed., Supp. V), which "provide[d] that the Secretary of Labor 'shall' issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse"). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists.
Instead, the Court invents a multiple-choice question that the EPA Administrator must answer when a petition for rulemaking is filed. The Administrator must exercise his judgment in one of three ways: (a) by concluding that the pollutant does cause, or contribute to, air pollution that endangers public welfare (in which case EPA is required to regulate); (b) by concluding that the pollutant does not cause, or contribute to, air pollution that endangers public welfare (in which case EPA is not required to regulate); or (c) by "provid[ing] some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether" greenhouse gases endanger public welfare, ante, at 30, (in which case EPA is not required to regulate).
I am willing to assume, for the sake of argument, that the Administrator's discretion in this regard is not entirely unbounded--that if he has no reasonable basis for deferring judgment he must grasp the nettle at once. The Court, however, with no basis in text or precedent, rejects all of EPA's stated "policy judgments" as not "amount[ing] to a reasoned justification," ante, at 31, effectively narrowing the universe of potential reasonable bases to a single one: Judgment can be delayed only if the Administrator concludes that "the scientific uncertainty is [too] profound." Ibid. The Administrator is precluded from concluding for other reasons "that it would ... be better not to regulate at this time." Ibid.1 Such other reasons--perfectly valid reasons--were set forth in the agency's statement.
"We do not believe ... that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time. As described in detail below, the President has laid out a comprehensive approach to climate change that calls for near-term voluntary actions and incentives along with programs aimed at reducing scientific uncertainties and encouraging technological development so that the government may effectively and efficiently address the climate change issue over the long term.
. . . . .
"[E]stablishing [greenhouse gas] emission standards for U. S. motor vehicles at this time would ... result in an inefficient, piecemeal approach to addressing the climate change issue. The U. S. motor vehicle fleet is one of many sources of [greenhouse gas] emissions both here and abroad, and different [greenhouse gas] emission sources face different technological and financial challenges in reducing emissions. A sensible regulatory scheme would require that all significant sources and sinks of [greenhouse gas] emissions be considered in deciding how best to achieve any needed emission reductions.
"Unilateral EPA regulation of motor vehicle [greenhouse gas] emissions could also weaken U. S. efforts to persuade developing countries to reduce the [greenhouse gas] intensity of their economies. Considering the large populations and growing economies of some developing countries, increases in their [greenhouse gas] emissions could quickly overwhelm the effects of [greenhouse gas] reduction measures in developed countries. Any potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U. S. emissions reductions. Unavoidably, climate change raises important foreign policy issues, and it is the President's prerogative to address them." 68 Fed. Reg. 52929-52931 (footnote omitted).
The Court dismisses this analysis as "rest[ing] on reasoning divorced from the statutory text." Ante, at 30. "While the statute does condition the exercise of EPA's authority on its formation of a 'judgment,' ... that judgment must relate to whether an air pollutant 'cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.' " Ibid. True but irrelevant. When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). But the statute says nothing at all about the reasons for which the Administrator may defer making a judgment--the permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various "policy" rationales, ante, at 31, that the Court criticizes are not "divorced from the statutory text," ante, at 30, except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. The reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy. There is no basis in law for the Court's imposed limitation.
EPA's interpretation of the discretion conferred by the statutory reference to "its judgment" is not only reasonable, it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). As the Administrator acted within the law in declining to make a "judgment" for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone.
B
Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that--and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions:
"As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities (pp. 9-12). It also noted that '[a] diverse array of evidence points to a warming of global surface air temperatures' (p. 16). The report goes on to state, however, that '[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale' (p. 17).
"The NRC also observed that 'there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols' (p. 1). As a result of that uncertainty, the NRC cautioned that 'current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).' Id. It further advised that '[r]educing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called "feedbacks" that determine the sensitivity of the climate system to a prescribed increase in [GHGs].' Id.
"The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that '[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood' (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs.
"Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system." 68 Fed. Reg. 52930.
I simply cannot conceive of what else the Court would like EPA to say.
II
1 A
Even before reaching its discussion of the word "judgment," the Court makes another significant error when it concludes that "§202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." Ante, at 25 (emphasis added). For such authorization, the Court relies on what it calls "the Clean Air Act's capacious definition of 'air pollutant.' " Ante, at 30.
"Air pollutant" is defined by the Act as "any air pollution agent or combination of such agents, including any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air." 42 U. S. C. §7602(g). The Court is correct that "[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons," ante, at 26, fit within the second half of that definition: They are "physical, chemical, ... substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air." But the Court mistakenly believes this to be the end of the analysis. In order to be an "air pollutant" under the Act's definition, the "substance or matter [being] emitted into ... the ambient air" must also meet the first half of the definition--namely, it must be an "air pollution agent or combination of such agents." The Court simply pretends this half of the definition does not exist.
The Court's analysis faithfully follows the argument advanced by petitioners, which focuses on the word "including" in the statutory definition of "air pollutant." See Brief for Petitioners 13-14. As that argument goes, anything that follows the word "including" must necessarily be a subset of whatever precedes it. Thus, if greenhouse gases qualify under the phrase following the word "including," they must qualify under the phrase preceding it. Since greenhouse gases come within the capacious phrase "any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air," they must also be "air pollution agent[s] or combination[s] of such agents," and therefore meet the definition of "air pollutant[s]."
That is certainly one possible interpretation of the statutory definition. The word "including" can indeed indicate that what follows will be an "illustrative" sampling of the general category that precedes the word. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941). Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category. The Government provides a helpful (and unanswered) example: "The phrase 'any American automobile, including any truck or minivan,' would not naturally be construed to encompass a foreign-manufactured [truck or] minivan." Brief for Federal Respondent 34. The general principle enunciated--that the speaker is talking about American automobiles--carries forward to the illustrative examples (trucks and minivans), and limits them accordingly, even though in isolation they are broader. Congress often uses the word "including" in this manner. In 28 U. S. C. §1782(a), for example, it refers to "a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." Certainly this provision would not encompass criminal investigations underway in a domestic tribunal. See also, e.g., 2 U. S. C. §54(a) ("The Clerk of the House of Representatives shall, at the request of a Member of the House of Representatives, furnish to the Member, for official use only, one set of a privately published annotated version of the United States Code, including supplements and pocket parts"); 22 U. S. C. §2304(b)(1) ("the relevant findings of appropriate international organizations, including nongovernmental organizations").
In short, the word "including" does not require the Court's (or the petitioners') result. It is perfectly reasonable to view the definition of "air pollutant" in its entirety: An air pollutant can be "any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air," but only if it retains the general characteristic of being an "air pollution agent or combination of such agents." This is precisely the conclusion EPA reached: "[A] substance does not meet the CAA definition of 'air pollutant' simply because it is a 'physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air.' It must also be an 'air pollution agent.' " 68 Fed. Reg. 52929, n. 3. See also id., at 52928 ("The root of the definition indicates that for a substance to be an 'air pollutant,' it must be an 'agent' of 'air pollution' "). Once again, in the face of textual ambiguity, the Court's application of Chevron deference to EPA's interpretation of the word "including" is nowhere to be found.2 Evidently, the Court defers only to those reasonable interpretations that it favors.
B
Using (as we ought to) EPA's interpretation of the definition of "air pollutant," we must next determine whether greenhouse gases are "agent[s]" of "air pollution." If so, the statute would authorize regulation; if not, EPA would lack authority.
Unlike "air pollutants," the term "air pollution" is not itself defined by the CAA; thus, once again we must accept EPA's interpretation of that ambiguous term, provided its interpretation is a "permissible construction of the statute." Chevron, 467 U. S., at 843. In this case, the petition for rulemaking asked EPA for "regulation of [greenhouse gas] emissions from motor vehicles to reduce the risk of global climate change." 68 Fed. Reg. 52925. Thus, in deciding whether it had authority to regulate, EPA had to determine whether the concentration of greenhouse gases assertedly responsible for "global climate change" qualifies as "air pollution." EPA began with the commonsense observation that the "[p]roblems associated with atmospheric concentrations of CO2," id., at 52927, bear little resemblance to what would naturally be termed "air pollution":
"EPA's prior use of the CAA's general regulatory provisions provides an important context. Since the inception of the Act, EPA has used these provisions to address air pollution problems that occur primarily at ground level or near the surface of the earth. For example, national ambient air quality standards (NAAQS) established under CAA section 109 address concentrations of substances in the ambient air and the related public health and welfare problems. This has meant setting NAAQS for concentrations of ozone, carbon monoxide, particulate matter and other substances in the air near the surface of the earth, not higher in the atmosphere... . CO2, by contrast, is fairly consistent in concentration throughout the world's atmosphere up to approximately the lower stratosphere." Id., at 52926-52927.
In other words, regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air.
We need look no further than the dictionary for confirmation that this interpretation of "air pollution" is eminently reasonable. The definition of "pollute," of course, is "[t]o make or render impure or unclean." Webster's New International Dictionary 1910 (2d ed. 1949). And the first three definitions of "air" are as follows: (1) "[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth"; (2) "[t]he body of the earth's atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part"; (3) "[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses." Id., at 54. EPA's conception of "air pollution"--focusing on impurities in the "ambient air" "at ground level or near the surface of the earth"--is perfectly consistent with the natural meaning of that term.
In the end, EPA concluded that since "CAA authorization to regulate is generally based on a finding that an air pollutant causes or contributes to air pollution," 68 Fed. Reg. 52928, the concentrations of CO2 and other greenhouse gases allegedly affecting the global climate are beyond the scope of CAA's authorization to regulate. "[T]he term 'air pollution' as used in the regulatory provisions cannot be interpreted to encompass global climate change." Ibid. Once again, the Court utterly fails to explain why this interpretation is incorrect, let alone so unreasonable as to be unworthy of Chevron deference.
* * *
The Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.
1 FOOTNOTES
Footnote 1
Pet. for Cert. 22.
Footnote 2
California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.
Footnote 3
District of Columbia, American Samoa, New York City, and Baltimore.
Footnote 4
Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U. S. Public Interest Research Group.
Footnote 5
Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.
Footnote 6
Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, and Utility Air Regulatory Group.
Footnote 7
The 1970 version of §202(a)(1) used the phrase "which endangers the public health or welfare" rather than the more-protective "which may reasonably be anticipated to endanger public health or welfare." See §6(a) of the Clean Air Amendments of 1970, 84 Stat. 1690. Congress amended §202(a)(1) in 1977 to give its approval to the decision in Ethyl Corp. v. EPA, 541 F. 2d 1, 25 (CADC 1976) (en banc), which held that the Clean Air Act "and common sense ... demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable." See §401(d)(1) of the Clean Air Act Amendments of 1977, 91 Stat. 791; see also H. R. Rep. No. 95-294, p. 49 (1977).
Footnote 8
The Council on Environmental Quality had issued a report in 1970 concluding that "[m]an may be changing his weather." Environmental Quality: The First Annual Report 93. Considerable uncertainty remained in those early years, and the issue went largely unmentioned in the congressional debate over the enactment of the Clean Air Act. But see 116 Cong. Rec. 32914 (1970) (statement of Sen. Boggs referring to Council's conclusion that "[a]ir pollution alters the climate and may produce global changes in temperature").
Footnote 9
See Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report, pp. 202-203 (2001). By drilling through thick Antarctic ice sheets and extracting "cores," scientists can examine ice from long ago and extract small samples of ancient air. That air can then be analyzed, yielding estimates of carbon dioxide levels. Ibid.
Footnote 10
A more dramatic rise was yet to come: In 2006, carbon dioxide levels reached 382 parts per million, see Dept. of Commerce, National Oceanic & Atmospheric Administration, Mauna Loa CO2 Monthly Mean Data, esrl.gmd/ccgg/trends/co2_mm_mlo.dat (all Internet materials as visited Mar. 29, 2007, and available in Clerk of Court's case file), a level thought to exceed the concentration of carbon dioxide in the atmosphere at any point over the past 20-million years. See Intergovernmental Panel on Climate Change, Technical Summary of Working Group I Report 39 (2001).
Footnote 11
Climate Research Board, Carbon Dioxide and Climate: A Scientific Assessment, p. vii (1979).
Footnote 12
IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J. Houghton, G. Jenkins, & J. Ephraums eds. 1991).
Footnote 13
The industrialized countries listed in Annex I to the UNFCCC undertook to reduce their emissions of greenhouse gases to 1990 levels by the year 2000. No immediate restrictions were imposed on developing countries, including China and India. They could choose to become Annex I countries when sufficiently developed.
Footnote 14
IPCC, Climate Change 1995, The Science of Climate Change, p. 4.
Footnote 15
Alliance for Sustainable Communities; Applied Power Technologies, Inc.; Bio Fuels America; The California Solar Energy Industries Assn.; Clements Environmental Corp.; Environmental Advocates; Environmental and Energy Study Institute; Friends of the Earth; Full Circle Energy Project, Inc.; The Green Party of Rhode Island; Greenpeace USA; International Center for Technology Assessment; Network for Environmental and Economic Responsibility of the United Church of Christ; New Jersey Environmental Watch; New Mexico Solar Energy Assn.; Oregon Environmental Council; Public Citizen; Solar Energy Industries Assn.; The SUN DAY Campaign. See App. 7-11.
Footnote 16
See 42 U. S. C. §7607(b)(1) ("A petition for review of action of the Administrator in promulgating any ... standard under section 7521 of this title ... or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia").
Footnote 17
The Chief Justice accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3-4 (dissenting opinion), and "devis[ing] a new doctrine of state standing," id., at 15. But no less an authority than Hart & Wechsler's The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States "to litigate as parens patriae to protect quasi-sovereign interests--i.e., public or governmental interests that concern the state as a whole." Id., at 289; see, e.g., Missouri v. Illinois, 180 U. S. 208, 240-241 (1901) (finding federal jurisdiction appropriate not only "in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a state," but also when the "substantial impairment of the health and prosperity of the towns and cities of the state" are at stake).
Drawing on Massachusetts v. Mellon, 262 U. S. 447 (1923), and Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592 (1982) (citing Missouri v. Illinois, 180 U. S. 208 (1901)), The Chief Justice claims that we "overloo[k] the fact that our cases cast significant doubt on a State's standing to assert a quasi-sovereign interest ... against the Federal Government." Post, at 5. Not so. Mellon itself disavowed any such broad reading when it noted that the Court had been "called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, [and] not quasi sovereign rights actually invaded or threatened." 262 U. S., at 484-485 (emphasis added). In any event, we held in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 447 (1945), that there is a critical difference between allowing a State "to protect her citizens from the operation of federal statutes" (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do). Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its rights under the Act. See also Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (holding that Wyoming had standing to bring a cross-claim against the United States to vindicate its " 'quasi-sovereign' interests which are 'independent of and behind the titles of its citizens, in all the earth and air within its domain' " (quoting Tennessee Copper, 206 U. S., at 237)).
Footnote 18
In this regard, MacCracken's 2004 affidavit--drafted more than a year in advance of Hurricane Katrina--was eerily prescient. Immediately after discussing the "particular concern" that climate change might cause an "increase in the wind speed and peak rate of precipitation of major tropical cyclones (i.e., hurricanes and typhoons)," MacCracken noted that "[s]oil compaction, sea level rise and recurrent storms are destroying approximately 20-30 square miles of Louisiana wetlands each year. These wetlands serve as a 'shock absorber' for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population." ¶¶24-25, Stdg. App. 217.
Footnote 19
"For example, the [Massachusetts Department of Conservation and Recreation] owns, operates and maintains approximately 53 coastal state parks, beaches, reservations, and wildlife sanctuaries. [It] also owns, operates and maintains sporting and recreational facilities in coastal areas, including numerous pools, skating rinks, playgrounds, playing fields, former coastal fortifications, public stages, museums, bike trails, tennis courts, boathouses and boat ramps and landings. Associated with these coastal properties and facilities is a significant amount of infrastructure, which the Commonwealth also owns, operates and maintains, including roads, parkways, stormwater pump stations, pier[s], sea wal[l] revetments and dams." Hoogeboom Decl. ¶4, at 171.
Footnote 20
See also id., at 179 (declaration of Christian Jacqz) (discussing possible loss of roughly 14 acres of land per miles of coastline by 2100); Kirshen Decl. ¶10, at 198 (alleging that "[w]hen such a rise in sea level occurs, a 10-year flood will have the magnitude of the present 100-year flood and a 100-year flood will have the magnitude of the present 500-year flood").
Footnote 21
In dissent, The Chief Justice dismisses petitioners' submissions as "conclusory," presumably because they do not quantify Massachusetts' land loss with the exactitude he would prefer. Post, at 8. He therefore asserts that the Commonwealth's injury is "conjectur[al]." See ibid. Yet the likelihood that Massachusetts' coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts' sovereign territory. No one, save perhaps the dissenters, disputes those allegations. Our cases require nothing more.
Footnote 22
See UNFCCC, National Greenhouse Gas Inventory Data for the Period 1990-2004 and Status of Reporting 14 (2006) (hereinafter Inventory Data) (reflecting emissions from Annex I countries); UNFCCC, Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention 7-8 (2005) (reflecting emissions from non-Annex I countries); see also Dept. of Energy, Energy Information Admin., International Energy Annual 2004, H.1co2 World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980-2004 (Table), .
Footnote 23
See also Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234 (CADC 1996) ("The more drastic the injury that government action makes more likely, the lesser the increment in probability to establish standing"); Village of Elk Grove Village v. Evans, 997 F. 2d 328, 329 (CA7 1993) ("[E]ven a small probability of injury is sufficient to create a case or controversy--to take a suit out of the category of the hypothetical--provided of course that the relief sought would, if granted, reduce the probability").
Footnote 24
In his dissent, The Chief Justice expresses disagreement with the Court's holding in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 687-688 (1973). He does not, however, disavow this portion of Justice Stewart's opinion for the Court:
"Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club [v. Morton, 405 U. S. 727 (1972)], the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion." Ibid. (citations omitted and emphasis added).
It is moreover quite wrong to analogize the legal claim advanced by Massachusetts and the other public and private entities who challenge EPA's parsimonious construction of the Clean Air Act to a mere "lawyer's game." See post, at 14.
Footnote 25
See Department of Housing and Urban Development v. Rucker, 535 U. S. 125, 131 (2002) (observing that " 'any' ... has an expansive meaning, that is, one or some indiscriminately of whatever kind" (some internal quotation marks omitted)).
Footnote 26
In dissent, Justice Scalia maintains that because greenhouse gases permeate the world's atmosphere rather than a limited area near the earth's surface, EPA's exclusion of greenhouse gases from the category of air pollution "agent[s]" is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984). See post, at 11-13. EPA's distinction, however, finds no support in the text of the statute, which uses the phrase "the ambient air" without distinguishing between atmospheric layers. Moreover, it is a plainly unreasonable reading of a sweeping statutory provision designed to capture "any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air." 42 U. S. C. §7602(g). Justice Scalia does not (and cannot) explain why Congress would define "air pollutant" so carefully and so broadly, yet confer on EPA the authority to narrow that definition whenever expedient by asserting that a particular substance is not an "agent." At any rate, no party to this dispute contests that greenhouse gases both "ente[r] the ambient air" and tend to warm the atmosphere. They are therefore unquestionably "agent[s]" of air pollution.
Footnote 27
See United States v. Price, 361 U. S. 304, 313 (1960) (holding that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one"); see also Cobell v. Norton, 428 F. 3d 1070, 1075 (CADC 2005) ("[P]ost-enactment legislative history is not only oxymoronic but inherently entitled to little weight").
Footnote 28
See, e.g., National Climate Program Act, §5, 92 Stat. 601, 15 U. S. C. §2901 et seq. (calling for the establishment of a National Climate Program and for additional climate change research); Global Climate Protection Act of 1987, §1103, 101 Stat. 1408-1409 (directing EPA and the Secretary of State to "jointly" develop a "coordinated national policy on global climate change" and report to Congress); Global Change Research Act of 1990, Tit. I, 104 Stat. 3097, 15 U. S. C. §§2921-2938 (establishing for the "development and coordination of a comprehensive and integrated United States research program" to aid in "understand[ing] ... human-induced and natural processes of climate change"); Global Climate Change Prevention Act of 1990, 104 Stat. 4058, 7 U. S. C. §6701 et seq. (directing the Dept. of Agriculture to study the effects of climate change on forestry and agriculture); Energy Policy Act of 1992, §§1601-1609, 106 Stat. 2999, 42 U. S. C. §§13381-13388 (requiring the Secretary of Energy to report on information pertaining to climate change).
Footnote 29
We are moreover puzzled by EPA's roundabout argument that because later Congresses chose to address stratospheric ozone pollution in a specific legislative provision, it somehow follows that greenhouse gases cannot be air pollutants within the meaning of the Clean Air Act.
2 FOOTNOTES
Footnote 1
The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 17, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing, see Republic of Venezuela v. Philip Morris Inc., 287 F. 3d 192, 199, n. (CADC 2002) (observing that "parens patriae is merely a species of prudential standing" (internal quotation marks omitted)), can somehow substitute for, or alter the content of, the "irreducible constitutional minimum" requirements of injury in fact, causation, and redressability under Article III. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), is not to the contrary. As the caption makes clear enough, the fact that a State may assert rights under a federal statute as parens patriae in no way refutes our clear ruling that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, n. 16 (1982).
Footnote 2
The difficulty with SCRAP, and the reason it has not been followed, is not the portion cited by the Court. See ante, at 23-24, n. 24. Rather, it is the attenuated nature of the injury there, and here, that is so troubling. Even in SCRAP, the Court noted that what was required was "something more than an ingenious academic exercise in the conceivable," 412 U. S., at 688, and we have since understood the allegation there to have been "that the string of occurrences alleged would happen immediately," Whitmore v. Arkansas, 495 U. S. 149, 159 (1990) (emphasis added). That is hardly the case here.
The Court says it is "quite wrong" to compare petitioners' challenging "EPA's parsimonious construction of the Clean Air Act to a mere 'lawyer's game.' " Ante, at 24, n. 24. Of course it is not the legal challenge that is merely "an ingenious academic exercise in the conceivable," SCRAP, supra, at 688, but the assertions made in support of standing.
3 FOOTNOTES
Footnote 1
The Court's way of putting it is, of course, not quite accurate. The issue is whether it would be better to defer the decision about whether to exercise judgment. This has the effect of deferring regulation but is quite a different determination.
Footnote 2
Not only is EPA's interpretation reasonable, it is far more plausible than the Court's alternative. As the Court correctly points out, "all airborne compounds of whatever stripe," ante, at 26, would qualify as "physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air," 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an "air pollutant." This reading of the statute defies common sense.
5
NATIONAL ASSOCIATION OF HOME BUILDERS et al. v. DEFENDERS OF WILDLIFE et al.
1 certiorari to the united states court of appeals for the ninth circuit
No. 06-340. Argued April 17, 2007--Decided June 25, 2007*
Under the Clean Water Act (CWA), petitioner Environmental Protection Agency (EPA) initially administers each State's National Pollution Discharge Elimination System (NPDES) permitting program, but CWA §402(b) provides that the EPA "shall approve" transfer of permitting authority to a State upon application and a showing that the State has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act of 1973 (ESA) requires federal agencies to consult with agencies designated by the Secretaries of Commerce and the Interior to "insure" that a proposed agency action is unlikely to jeopardize an endangered or threatened species. The Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) administer the ESA. Once a consultation process is complete, a written biological opinion is issued, which may suggest alternative actions to protect a jeopardized species or its critical habitat. When Arizona officials sought EPA authorization to administer the State's NPDES program, the EPA initiated consultation with the FWS to determine whether the transfer would adversely affect any listed species. The FWS regional office wanted potential impacts taken into account, but the EPA disagreed, finding that §402(b)'s mandatory nature stripped it of authority to disapprove a transfer based on any other considerations. The dispute was referred to the agencies' national offices for resolution. The FWS's biological opinion concluded that the requested transfer would not jeopardize listed species. The EPA concluded that Arizona had met each of §402(b)'s nine criteria and approved the transfer, noting that the biological opinion had concluded the consultation "required" by ESA §7(a)(2). Respondents sought review in the Ninth Circuit, petitioner National Association of Home Builders intervened, and part of respondent Defenders of Wildlife's separate action was consolidated with the suit. The court held that the EPA's transfer approval was arbitrary and capricious because the EPA had relied on contradictory positions regarding its §7(a)(2) responsibilities during the administrative process. Rather than remanding the case for the agency to explain its decision, however, the court reviewed the EPA's substantive construction of the statutes. It did not dispute that Arizona had met CWA §402(b)'s nine criteria, but nevertheless concluded that ESA §7(a)(2) required the EPA to determine whether its transfer decision would jeopardize listed species, in effect adding a tenth criterion. The court dismissed the argument that the EPA's approval was not subject to §7(a)(2) because it was not a "discretionary action" under 50 CFR §402.03, §7(a)(2)'s interpretative regulation. The court thus vacated the EPA's transfer decision.
Held:
1. The Ninth Circuit's determination that the EPA's action was arbitrary and capricious is not fairly supported by the record. This Court will not vacate an agency's decision under the arbitrary and capricious standard unless the agency "relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. Here, the Ninth Circuit concluded that the EPA's decision was internally inconsistent in its statements during the review process. Federal courts ordinarily are empowered to review only an agency's final action, and the fact that a local agency representative's preliminary determination is later overruled at a higher agency level does not render the decisionmaking process arbitrary and capricious. The EPA's final approval notice stating that §7(a)(2)'s required consultation process had been concluded may be inconsistent with its previously expressed position--and position in this litigation--that §7(a)(2)'s consultation requirement is not triggered by a §402 transfer application, but that is not the type of error requiring a remand. By the time the statement was issued, the EPA and FWS had already consulted, and the question whether that consultation had been required was not germane to the final agency decision. Thus, this Court need not further delay the permitting authority transfer by remanding to the agency for clarification. Respondents suggest that the EPA nullified their right to participate in the application proceedings by altering its legal position during the pendency of the transfer decision and its associated litigation, but they do not suggest that they were deprived of their right to comment during the comment period made available under the EPA's regulations. Pp. 10-14.
2. Because §7(a)(2)'s no-jeopardy duty covers only discretionary agency actions, it does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. Pp. 14-25.
(a) At first glance the legislative commands here are irreconcilable. Section 402(b)'s "shall approve" language is mandatory and its list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application. Section 7(a)(2)'s similarly imperative language would literally add a tenth criterion to §402(b). Pp. 14-15.
(b) While a later enacted statute (such as the ESA) can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), "repeals by implication are not favored" and will not be presumed unless the legislature's intention "to repeal [is] clear and manifest." Watt v. Alaska, 451 U. S. 259, 267. Statutory repeal will not be inferred "unless the later statute ' "expressly contradict[s] the original act" ' or such a construction ' "is absolutely necessary [to give the later statute's words] any meaning at all." ' " Traynor v. Turnage, 485 U. S. 535, 548. Otherwise, "a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum." Radzanower v. Touche Ross & Co., 426 U. S. 148, 153. The Ninth Circuit's reading of §7(a)(2) would effectively repeal §402(b)'s mandate that the EPA "shall" issue a permit whenever all nine exclusive statutory prerequisites are met. Section 402(b) does not just set minimum requirements; it affirmatively mandates a transfer's approval, thus operating as a ceiling as well as a floor. By adding an additional criterion, the Ninth Circuit raises that floor and alters the statute's command. Read broadly, the Ninth Circuit's construction would also partially override every federal statute mandating agency action by subjecting such action to the further condition that it not jeopardize listed species. Pp. 15-17.
(c) Title 50 CFR §402.03, promulgated by the NMFS and FWS and applying §7(a)(2) "to all actions in which there is discretionary Federal involvement or control" (emphasis added), harmonizes the CWA and ESA by giving effect to the ESA's no-jeopardy mandate whenever an agency has discretion to do so, but not when the agency is forbidden from considering such extrastatutory factors. The Court owes "some degree of deference to the Secretary's reasonable interpretation" of the ESA, Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703. Deference is not due if Congress has made its intent "clear" in the statutory text, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842, but "if the statute is silent or ambiguous ... the question ... is whether the agency's answer is based on a permissible construction of the statute," id., at 843. Because the "meaning--or ambiguity--of certain words or phrases may only become evident ... in context," FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132, §7(a)(2) must be read against the statutory backdrop of the many mandatory agency directives whose operation it would implicitly abrogate or repeal were it construed as broadly as the Ninth Circuit did below. Such a reading leaves a fundamental ambiguity. An agency cannot simultaneously obey the differing mandates of ESA §7(a)(2) and CWA §402(b), and consequently the statutory language--read in light of the canon against implied repeals--does not itself provide clear guidance as to which command must give way. Thus, it is appropriate to look to the implementing agency's expert interpretation, which harmonizes the statutes by applying §7(a)(2) to guide agencies' existing discretionary authority, but not reading it to override express statutory mandates. This interpretation is reasonable in light of the statute's text and the overall statutory scheme and is therefore entitled to Chevron deference. The regulation's focus on "discretionary" actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to "insure" that such action will not jeopardize listed species. The basic principle of Department of Transportation v. Public Citizen, 541 U. S. 752--that an agency cannot be considered the legal "cause" of an action that it has no statutory discretion not to take, id., at 770--supports the reasonableness of the FWS's interpretation. Pp. 17-22.
(d) Respondents' contrary position is not supported by TVA v. Hill, 437 U. S. 153, which had no occasion to answer the question presented in these cases. Pp. 22-24.
(e) Also unavailing is the argument that EPA's decision to transfer NPDES permitting authority to Arizona represented a "discretionary" agency action. While the EPA may exercise some judgment in determining whether a State has shown that it can carry out §402(b)'s enumerated criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in §402(b) authorizes the EPA to consider the protection of listed species as an end in itself when evaluating a transfer application. And to the extent that some of §402(b)'s criteria may result in environmental benefits to marine species, Arizona has satisfied each of those criteria. Respondents' argument has also been disclaimed by the FWS and the NMFS, the agencies primarily charged with administering §7(a)(2) and the drafters of the regulations implementing that section. Pp. 24-25.
420 F. 3d 946, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.
NATIONAL ASSOCIATION OF HOME BUILDERS,
et al., PETITIONERS
06-340 v.
DEFENDERS OF WILDLIFE et al.
ENVIRONMENTAL PROTECTION AGENCY,
PETITIONER
06-549 v.
DEFENDERS OF WILDLIFE et al.
2 on writs of certiorari to the united states court of
appeals for the ninth circuit
[June 25, 2007]
Justice Alito delivered the opinion of the Court.
These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species." The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities--who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes--was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit.
I
1 A
2 1
The Clean Water Act of 1972 (CWA), 86 Stat. 816, 33 U. S. C. §1251 et seq., established a National Pollution Discharge Elimination System (NPDES) that is designed to prevent harmful discharges into the Nation's waters. The Environmental Protection Agency (EPA) initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. See 33 U. S. C. §1342; see also §1251(b) ("It is the policy of Congress that the Stat[e] ... implement the permit progra[m] under sectio[n] 1342 ... of this title"). If authority is transferred, then state officials--not the federal EPA--have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.1
Under §402(b) of the CWA, "the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to [the EPA] a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact," as well as a certification "that the laws of such State ... provide adequate authority to carry out the described program." 33 U. S. C. §1342(b). The same section provides that the EPA "shall approve each submitted program" for transfer of permitting authority to a State "unless [it] determines that adequate authority does not exist" to ensure that nine specified criteria are satisfied. Ibid. These criteria all relate to whether the state agency that will be responsible for permitting has the requisite authority under state law to administer the NPDES program.2 If the criteria are met, the transfer must be approved.
2
The Endangered Species Act of 1973 (ESA), 87 Stat. 884, as amended, 16 U. S. C. §1531 et seq., is intended to protect and conserve endangered and threatened species and their habitats. Section 4 of the ESA directs the Secretaries of Commerce and the Interior to list threatened and endangered species and to designate their critical habitats. §1533. The Fish and Wildlife Service (FWS) administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, while the National Marine Fisheries Service (NMFS) administers the ESA with respect to species under the jurisdiction of the Secretary of Commerce. See 50 CFR §§17.11, 222.101(a), 223.102, 402.01(b) (2006).
Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U. S. C. §1536(a)(2).
Once the consultation process contemplated by §7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion "setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." §1536(b)(3)(A); see also 50 CFR §402.14(h). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, "the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [§7(a)(2)] and can be taken by the Federal agency ... in implementing the agency action." 16 U. S. C. §1536(b)(3)(A); see also 50 CFR §402.14(h)(3). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a "reasonable and prudent alternative," an alternative course of action must be able to be implemented in a way "consistent with the scope of the Federal agency's legal authority and jurisdiction." §402.02. Following the issuance of a "jeopardy" opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U. S. C. §1536(e). The regulations also provide that "Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." 50 CFR §402.03.
B
1 1
In February 2002, Arizona officials applied for EPA authorization to administer that State's NPDES program.3 The EPA initiated consultation with the FWS to determine whether the transfer of permitting authority would adversely affect any listed species.
The FWS regional office concluded that the transfer of authority would not cause any direct impact on water quality that would adversely affect listed species. App. to Pet. for Cert. in No. 06-340, p. 564. However, the FWS office was concerned that the transfer could result in the issuance of more discharge permits, which would lead to more development, which in turn could have an indirect adverse effect on the habitat of certain upland species, such as the cactus ferruginous pygmy-owl and the Pima pineapple cactus. Specifically, the FWS feared that, because §7(a)(2)'s consultation requirement does not apply to permitting decisions by state authorities,4 the transfer of authority would empower Arizona officials to issue individual permits without considering and mitigating their indirect impact on these upland species. Id., at 565-566. The FWS regional office therefore urged that, in considering the proposed transfer of permitting authority, those involved in the consultation process should take these potential indirect impacts into account.
The EPA disagreed, maintaining that "its approval action, which is an administrative transfer of authority, [would not be] the cause of future non-discharge-related impacts on endangered species from projects requiring State NPDES permits." Id., at 564. As a factual matter, the EPA believed that the link between the transfer of permitting authority and the potential harm that could result from increased development was too attenuated. Id., at 654. And as a legal matter, the EPA concluded that the mandatory nature of CWA §402(b)--which directs that the EPA "shall approve" a transfer request if that section's nine statutory criteria are met--stripped it of authority to disapprove a transfer based on any other considerations. Id., at 654-655.
Pursuant to procedures set forth in a memorandum of understanding between the agencies, the dispute was referred to the agencies' national offices for resolution. In December 2002, the FWS issued its biological opinion, which concluded that the requested transfer would not cause jeopardy to listed species. The opinion reasoned that "the loss of section 7-related conservation benefits . . . is not an indirect effect of the authorization action," id., at 117, because
"loss of any conservation benefit is not caused by EPA's decision to approve the State of Arizona's program. Rather, the absence of the section 7 process that exists with respect to Federal NPDES permits reflects Congress' decision to grant States the right to administer these programs under state law provided the State's program meets the requirements of [§]402(b) of the Clean Water Act." Id., at 114.
In addition, the FWS opined that the EPA's continuing oversight of Arizona's permitting program, along with other statutory protections, would adequately protect listed species and their habitats following the transfer. Id., at 101-107.
The EPA concluded that Arizona had met each of the nine statutory criteria listed in §402(b) and approved the transfer of permitting authority. In the notice announcing the approval of the transfer, the EPA noted that the issuance of the FWS's biological opinion had "conclude[d] the consultation process required by ESA section 7(a)(2) and reflects the [FWS'] agreement with EPA that the approval of the State program meets the substantive requirements of the ESA." Id., at 73.
2
On April 2, 2003, respondents filed a petition in the United States Court of Appeals for the Ninth Circuit seeking review of the transfer pursuant to 33 U. S. C. §1369(b)(1)(D), which allows private parties to seek direct review of the EPA's determinations regarding state permitting programs in the federal courts of appeals. The court granted petitioner National Association of Homebuilders leave to intervene as a respondent in that case. Respondent Defenders of Wildlife also filed a separate action in the United States District Court for the District of Arizona, alleging, among other things, that the biological opinion issued by the FWS in support of the proposed transfer did not comply with the ESA's standards. The District Court severed that claim and transferred it to the Court of Appeals for the Ninth Circuit, which consolidated the case with the suit challenging the EPA transfer. See 420 F. 3d 946 (2005).
A divided panel of the Ninth Circuit held that the EPA's approval of the transfer was arbitrary and capricious because the EPA "relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations." Id., at 959. The court concluded that the EPA "fail[ed] to understand its own authority under section 7(a)(2) to act on behalf of listed species and their habitat," id., at 977, because "the two propositions that underlie the EPA's action--that (1) it must, under the [ESA], consult concerning transfers of CWA permitting authority, but (2) it is not permitted, as a matter of law, to take into account the impact on listed species in making the transfer decision--cannot both be true," id., at 961. The court therefore concluded that it was required to "remand to the agency for a plausible explanation of its decision, based on a single, coherent interpretation of the statute." Id., at 962.
The panel majority, however, did not follow this course of action. Rather, the panel went on to review the EPA's substantive construction of the statutes at issue and held that the ESA granted the EPA both the power and the duty to determine whether its transfer decision would jeopardize threatened or endangered species. The panel did not dispute that Arizona had met the nine criteria set forth in §402(b) of the CWA, but the panel nevertheless concluded that §7(a)(2) of the ESA provided an "affirmative grant of authority to attend to [the] protection of listed species," id., at 965, in effect adding a tenth criterion to those specified in §402(b). The panel dismissed the argument that the EPA's approval of the transfer application was not subject to §7(a)(2) because it was not a "discretionary action" within the meaning of 50 CFR §402.03 (interpreting §7(a)(2) to apply only to agency actions "in which there is discretionary Federal involvement and control"). 420 F. 3d, at 967-969. It viewed the FWS's regulation as merely "coterminous" with the express statutory language encompassing all agency actions that are " 'authorized, funded, or carried out' " by the agency. Id., at 969 (quoting 16 U. S. C. §1536(a)(2)). On these grounds, the court granted the petition and vacated the EPA's transfer decision.
In dissent, Judge Thompson explained that the transfer decision was not a "discretionary action" under 50 CFR §402.03 because "[t]he Clean Water Act, by its very terms, permits the EPA to consider only the nine specified factors. If a state's proposed permitting program meets the enumerated requirements," he reasoned, "the EPA administrator 'shall approve' the program. 33 U. S. C. §1342(b). This [c]ongressional directive does not permit the EPA to impose additional conditions." 420 F. 3d, at 980.
The Ninth Circuit denied rehearing and rehearing en banc. 450 F. 3d 394 (2006). Writing for the six judges who dissented from the denial of rehearing en banc, Judge Kozinski disagreed with the panel's conclusion that the EPA's analysis was so internally inconsistent as to be arbitrary and capricious. He further noted that, if the panel was correct on this point, the proper resolution would have been to remand to the EPA for further explanation. Id., at 396-398. On the statutory question, Judge Kozinski echoed Judge Thompson's conclusion that once the nine criteria set forth in §402(b) of the CWA are satisfied, a transfer is mandatory and nondiscretionary. Id., at 397-399. He rejected the panel majority's broad construction of ESA §7(a)(2), concluding that "[i]f the ESA were as powerful as the majority contends, it would modify not only the EPA's obligation under the CWA, but every categorical mandate applicable to every federal agency." Id., at 399, n. 4.
The Ninth Circuit's construction of §7(a)(2) is at odds with that of other Courts of Appeals. Compare 420 F. 3d 946 (case below), with Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F. 2d 27, 33-34 (CADC 1992), and American Forest & Paper Association v. EPA, 137 F. 3d 291, 298-299 (CA5 1998). We granted certiorari to resolve this conflict, 549 U. S. ___ (2007), and we now reverse.
II
Before addressing this question of statutory interpretation, however, we first consider whether the Court of Appeals erred in holding that the EPA's transfer decision was arbitrary and capricious because, in that court's words, the agencies involved in the decision "relied ... on legally contradictory positions regarding [their] section 7 obligations." App. to Pet. for Cert. in No. 06-340, at 23.
As an initial matter, we note that if the EPA's action was arbitrary and capricious, as the Ninth Circuit held, the proper course would have been to remand to the agency for clarification of its reasons. See Gonzales v. Thomas, 547 U. S. 183 (2006) (per curiam). Indeed, the court below expressly recognized that this finding required it to "remand to the agency for a plausible explanation of its decision, based on a single, coherent interpretation of the statute." App. to Pet. for Cert. in No. 06-340, at 28. But the Ninth Circuit did not take this course; instead, it jumped ahead to resolve the merits of the dispute. In so doing, it erroneously deprived the agency of its usual administrative avenue for explaining and reconciling the arguably contradictory rationales that sometimes appear in the course of lengthy and complex administrative decisions. We need not examine this question further, however, because we conclude that the Ninth Circuit's determination that the EPA's action was arbitrary and capricious is not fairly supported by the record.
Review under the arbitrary and capricious standard is deferential; we will not vacate an agency's decision unless it
"has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983).
"We will, however, 'uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.' " Ibid. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974)).
The Court of Appeals concluded that the EPA's decision was "internally inconsistent" because, in its view, the agency stated--both during preliminary review of Arizona's transfer application and in the Federal Register notice memorializing its final action--"that section 7 requires consultation regarding the effect of a permitting transfer on listed species." App. to Pet. for Cert. in No. 06-340, at 23.
With regard to the various statements made by the involved agencies' regional offices during the early stages of consideration, the only "inconsistency" respondents can point to is the fact that the agencies changed their minds--something that, as long as the proper procedures were followed, they were fully entitled to do. The federal courts ordinarily are empowered to review only an agency's final action, see 5 U. S. C. §704, and the fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decisionmaking process arbitrary and capricious.
Respondents also point to the final Federal Register notice memorializing the EPA's approval of Arizona's transfer application. This notice stated that the FWS's issuance of its biological opinion had "conclude[d] the consultation process required by ESA section 7(a)(2)." App. to Pet. for Cert. in No. 06-340, at 73. Respondents contend that this statement is inconsistent with the EPA's previously expressed position--and their position throughout this litigation--that §7(a)(2)'s consultation requirement is not triggered by a transfer application under §402 of the CWA.
We are not persuaded that this statement constitutes the type of error that requires a remand. By the time the Federal Register statement was issued, the EPA had already consulted with the FWS about the Arizona application, and the question whether that consultation had been required, as opposed to voluntarily undertaken by the agency, was simply not germane to the final agency transfer decision. The Federal Register statement, in short, was dictum, and it had no bearing on the final agency action that respondents challenge. Mindful of Congress' admonition that in reviewing agency action, "due account shall be taken of the rule of prejudicial error," 5 U. S. C. §706, we do not believe that this stray statement, which could have had no effect on the underlying agency action being challenged, requires that we further delay the transfer of permitting authority to Arizona by remanding to the agency for clarification. See also PDK Labs., Inc. v. United States Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) ("In administrative law, as in federal civil and criminal litigation, there is a harmless error rule").5
We further disagree with respondents' suggestion that, by allegedly altering its legal position while the Arizona transfer decision and its associated litigation was pending, the "EPA is effectively nullifying respondents' rights to participate in administrative proceedings concerning Arizona's application, and particularly respondents' rights under EPA's own regulations to comment on NPDES transfer applications." Brief for Respondents 28 (citing 40 CFR §123.61(b); emphasis deleted). Consistent with EPA regulations, the agency made available "a comment period of not less than 45 days during which interested members of the public [could] express their views on the State program." §123.61(a)(1). Respondents do not suggest that they were deprived of their right to comment during this period.6
Respondents also contend that if the case were remanded to the EPA, they would raise additional challenges--including, for example, a challenge to the EPA's provision of financial assistance to Arizona for the administration of its NPDES program. However, as explained below, any such agency action is separate and independent of the agency's decision to authorize the transfer of permitting authority pursuant to §402(b). See n. 11, infra. We express no opinion as to the viability of a separate administrative or legal challenge to such actions.
III
1 A
We turn now to the substantive statutory question raised by the petitions, a question that requires us to mediate a clash of seemingly categorical--and, at first glance, irreconcilable--legislative commands. Section 402(b) of the CWA provides, without qualification, that the EPA "shall approve" a transfer application unless it determines that the State lacks adequate authority to perform the nine functions specified in the section. 33 U. S. C. §1342(b). By its terms, the statutory language is mandatory and the list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application. Cf. Lopez v. Davis, 531 U. S. 230, 241 (2001) (noting Congress' "use of a mandatory 'shall' ... to impose discretionless obligations"); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) ("[T]he mandatory 'shall' . . . normally creates an obligation impervious to judicial discretion"); Association of Civil Technicians v. FLRA, 22 F. 3d 1150, 1153 (CADC 1994) ("The word 'shall' generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive"); Black's Law Dictionary 1375 (6th ed. 1990) ("As used in statutes ... this word is generally imperative or mandatory"). Neither respondents nor the Ninth Circuit has ever disputed that Arizona satisfied each of these nine criteria. See 420 F. 3d, at 963, n. 11; Brief for Respondents 19, n. 8.
The language of §7(a)(2) of the ESA is similarly imperative: it provides that "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize" endangered or threatened species or their habitats. 16 U. S. C. §1536(a)(2). This mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action. As the author of the panel opinion below recognized, applying this language literally would "ad[d] one [additional] requirement to the list of considerations under the Clean Water Act permitting transfer provision." 450 F. 3d, at 404, n. 2 (Berzon, J., concurring in denial of rehearing en banc) (emphasis in original). That is, it would effectively repeal the mandatory and exclusive list of criteria set forth in §402(b), and replace it with a new, expanded list that includes §7(a)(2)'s no-jeopardy requirement.
B
While a later enacted statute (such as the ESA) can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), "repeals by implication are not favored" and will not be presumed unless the "intention of the legislature to repeal [is] clear and manifest." Watt v. Alaska, 451 U. S. 259, 267 (1981) (internal quotation marks omitted). We will not infer a statutory repeal "unless the later statute ' "expressly contradict[s] the original act" ' or unless such a construction ' "is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all." ' " Traynor v. Turnage, 485 U. S. 535, 548 (1988) (quoting Radzanower v. Touche Ross & Co., 426 U. S. 148, 153 (1976), in turn quoting T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874)); see also Branch v. Smith, 538 U. S. 254, 273 (2003) ("An implied repeal will only be found where provisions in two statutes are in 'irreconcilable conflict,' or where the latter Act covers the whole subject of the earlier one and 'is clearly intended as a substitute' "); Posadas v. National City Bank, 296 U. S. 497, 503 (1936) ("[T]he intention of the legislature to repeal must be clear and manifest"). Outside these limited circumstances, "a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum." Radzanower, supra, at 153.
Here, reading §7(a)(2) as the Court of Appeals did would effectively repeal §402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA.7 Section 402(b) of the CWA commands that the EPA "shall" issue a permit whenever all nine exclusive statutory prerequisites are met. Thus, §402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer "shall" be approved if the specified criteria are met. The provision operates as a ceiling as well as a floor. By adding an additional criterion, the Ninth Circuit's construction of §7(a)(2) raises that floor and alters §402(b)'s statutory command.8
The Ninth Circuit's reading of §7(a)(2) would not only abrogate §402(b)'s statutory mandate, but also result in the implicit repeal of many additional otherwise categorical statutory commands. Section 7(a)(2) by its terms applies to "any action authorized, funded, or carried out by" a federal agency--covering, in effect, almost anything that an agency might do. Reading the provision broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species. See, e.g., Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F. 2d, at 33-34 (considering whether §7(a)(2) overrides the Federal Power Act's prohibition on amending annual power licenses). While the language of §7(a)(2) does not explicitly repeal any provision of the CWA (or any other statute), reading it for all that it might be worth runs foursquare into our presumption against implied repeals.
C
1 1
The agencies charged with implementing the ESA have attempted to resolve this tension through regulations implementing §7(a)(2). The NMFS and FWS, acting jointly on behalf of the Secretaries of Commerce and the Interior and following notice-and-comment rulemaking procedures, have promulgated a regulation stating that "Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." 50 CFR §402.03 (emphasis added). Pursuant to this regulation, §7(a)(2) would not be read as impliedly repealing nondiscretionary statutory mandates, even when they might result in some agency action. Rather, the ESA's requirements would come into play only when an action results from the exercise of agency discretion. This interpretation harmonizes the statutes by giving effect to the ESA's no-jeopardy mandate whenever an agency has discretion to do so, but not when the agency is forbidden from considering such extrastatutory factors.
We have recognized that "[t]he latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation" of the statutory scheme. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703 (1995). But such deference is appropriate only where "Congress has not directly addressed the precise question at issue" through the statutory text. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).
"If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress... . [However,] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id., at 842-843 (footnotes omitted).
In making the threshold determination under Chevron, "a reviewing court should not confine itself to examining a particular statutory provision in isolation." FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132 (2000). Rather, "[t]he meaning--or ambiguity--of certain words or phrases may only become evident when placed in context... . It is a 'fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.' " Id., at 132-133 (quoting Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989)).
We must therefore read §7(a)(2) of the ESA against the statutory backdrop of the many mandatory agency directives whose operation it would implicitly abrogate or repeal if it were construed as broadly as the Ninth Circuit did below. When §7(a)(2) is read this way, we are left with a fundamental ambiguity that is not resolved by the statutory text. An agency cannot simultaneously obey the differing mandates set forth in §7(a)(2) of the ESA and §402(b) of the CWA, and consequently the statutory language--read in light of the canon against implied repeals--does not itself provide clear guidance as to which command must give way.
In this situation, it is appropriate to look to the implementing agency's expert interpretation, which cabins §7(a)(2)'s application to "actions in which there is discretionary Federal involvement or control." 50 CFR §402.03. This reading harmonizes the statutes by applying §7(a)(2) to guide agencies' existing discretionary authority, but not reading it to override express statutory mandates.
2
We conclude that this interpretation is reasonable in light of the statute's text and the overall statutory scheme, and that it is therefore entitled to deference under Chevron. Section 7(a)(2) requires that an agency "insure" that the actions it authorizes, funds, or carries out are not likely to jeopardize listed species or their habitats. To "insure" something--as the court below recognized--means " '[t]o make certain, to secure, to guarantee (some thing, event, etc.).' " 420 F. 3d, at 963 (quoting 7 Oxford English Dictionary 1059 (2d ed. 1989)). The regulation's focus on "discretionary" actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to "insure" that such action will not jeopardize endangered species.
This reasoning is supported by our decision in Department of Transportation v. Public Citizen, 541 U. S. 752 (2004). That case concerned safety regulations that were promulgated by the Federal Motor Carrier Safety Administration (FMCSA) and had the effect of triggering a Presidential directive allowing Mexican trucks to ply their trade on United States roads. The Court held that the National Environmental Policy Act (NEPA) did not require the agency to assess the environmental effects of allowing the trucks entry because "the legally relevant cause of the entry of the Mexican trucks is not FMCSA's action, but instead the actions of the President in lifting the moratorium and those of Congress in granting the President this authority while simultaneously limiting FMCSA's discretion." Id., at 769 (emphasis in original). The Court concluded that "where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant 'cause' of the effect." Id., at 770.
We do not suggest that Public Citizen controls the outcome here; §7(a)(2), unlike NEPA, imposes a substantive (and not just a procedural) statutory requirement, and these cases involve agency action more directly related to environmental concerns than the FMCSA's truck safety regulations. But the basic principle announced in Public Citizen--that an agency cannot be considered the legal "cause" of an action that it has no statutory discretion not to take--supports the reasonableness of the FWS's interpretation of §7(a)(2) as reaching only discretionary agency actions. See also California v. United States, 438 U. S. 645, 668, n. 21 (1978) (holding that a statutory requirement that federal operating agencies conform to state water usage rules applied only to the extent that it was not "inconsistent with other congressional directives").
3
The court below simply disregarded §402.03's interpretation of the ESA's reach, dismissing "the regulation's reference to 'discretionary ... involvement' " as merely "congruent with the statutory reference to actions 'authorized, funded, or carried out' by the agency." 420 F. 3d, 968. But this reading cannot be right. Agency discretion presumes that an agency can exercise "judgment" in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415-416 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed. 1967) ("discretion" defined as "the power or right to decide or act according to one's own judgment; freedom of judgment or choice"). As the mandatory language of §402(b) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency's exercise of discretion.
The dissent's interpretation of §402.03 is similarly implausible. The dissent would read the regulation as simply clarifying that discretionary agency actions are included within the scope of §7(a)(2), but not confining the statute's reach to such actions. See post, at 7-11. But this reading would render the regulation entirely superfluous. Nothing in either §7(a)(2) or the other agency regulations interpreting that section, see §402.02, suggests that discretionary actions are excluded from the scope of the ESA, and there is thus no need for a separate regulation to bring them within the statute's scope. On the dissent's reading, §402.03's reference to "discretionary" federal involvement is mere surplusage, and we have cautioned against reading a text in a way that makes part of it redundant. See, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001).
This history of the regulation also supports the reading to which we defer today. As the dissent itself points out, the proposed version of §402.03 initially stated that "Section 7 and the requirements of this Part apply to all actions in which there is Federal involvement or control," 48 Fed. Reg. 29999 (1983) (emphasis added); the Secretary of the Interior modified this language to provide (as adopted in the Final Rule now at issue) that the statuory requirements apply to "all actions in which there is discretionary Federal involvement or control," 51 Fed. Reg. 19958 (1986) (emphasis added). The dissent's reading would rob the word "discretionary" of any effect, and substitute the earlier, proposed version of the regulation for the text that was actually adopted.
In short, we read §402.03 to mean what it says: that §7(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays §7(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties.
D
Respondents argue that our opinion in TVA v. Hill, 437 U. S. 153 (1978), supports their contrary position. In that case, we held that the ESA prohibited the Tennessee Valley Authority (TVA) from putting into operation the Tellico Dam--despite the fact that the agency had already spent over $100 million on the nearly completed project--because doing so would have threatened the critical habitat of the endangered snail darter. In language on which respondents rely, the Court concluded that "the ordinary meaning" of §7 of the ESA contained "no exemptions" and reflected "a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies." Id., at 173, 185, 188.
TVA v. Hill, however, had no occasion to answer the question presented in these cases. That case was decided almost a decade before the adoption in 1986 of the regulations contained in 50 CFR §402.03. And in any event, the construction project at issue in TVA v. Hill, while expensive, was also discretionary. The TVA argued that by continuing to make lump-sum appropriations to the TVA, some of which were informally earmarked for the Tellico Dam project, Congress had implicitly repealed §7's no-jeopardy requirement as it applied to that project. See 437 U. S., at 189-193. The Court rejected this argument, concluding that "[t]he Appropriations Acts did not themselves identify the projects for which the sums had been appropriated" and that reports by congressional committees allegedly directing the TVA to complete the project lacked the force of law. Id., at 189, n. 35. Central to the Court's decision was the conclusion that Congress did not mandate that the TVA put the dam into operation; there was no statutory command to that effect; and there was therefore no basis for contending that applying the ESA's no-jeopardy requirement would implicitly repeal another affirmative congressional directive.9
TVA v. Hill thus supports the position, expressed in §402.03, that the ESA's no-jeopardy mandate applies to every discretionary agency action--regardless of the expense or burden its application might impose. But that case did not speak to the question whether §7(a)(2) applies to non-discretionary actions, like the one at issue here. The regulation set forth in 50 CFR §402.03 addressed that question, and we defer to its reasonable interpretation.
IV
Finally, respondents and their amici argue that, even if §7(a)(2) is read to apply only to "discretionary" agency actions, the decision to transfer NPDES permitting authority to Arizona represented such an exercise of discretion. They contend that the EPA's decision to authorize a transfer is not entirely mechanical; that it involves some exercise of judgment as to whether a State has met the criteria set forth in §402(b); and that these criteria incorporate references to wildlife conservation that bring consideration of §7(a)(2)'s no-jeopardy mandate properly within the agency's discretion.
The argument is unavailing. While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out §402(b)'s enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in the text of §402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application. And to the extent that some of the §402(b) criteria may result in environmental benefits to marine species,10 there is no dispute that Arizona has satisfied each of those statutory criteria.
Respondents' argument has been disclaimed not only by the EPA, but also by the FWS and the NMFS, the two agencies primarily charged with administering §7(a)(2) and the drafters of the regulations implementing that section. Each agency recently issued a formal letter concluding that the authorization of an NPDES permitting transfer is not the kind of discretionary agency action that is covered by §402.03. See App. to Pet. for Cert. in No. 06-549, at 103a-116a. An agency's interpretation of the meaning of its own regulations is entitled to deference "unless plainly erroneous or inconsistent with the regulation," Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted), and that deferential standard is plainly met here.11
* * *
Applying Chevron, we defer to the agency's reasonable interpretation of ESA §7(a)(2) as applying only to "actions in which there is discretionary Federal involvement or control." 50 CFR §402.03. Since the transfer of NPDES permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in §402(b) of the CWA, it follows that a transfer of NPDES permitting authority does not trigger §7(a)(2)'s consultation and no-jeopardy requirements. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and these cases are remanded for further proceedings consistent with this opinion.
NATIONAL ASSOCIATION OF HOME BUILDERS,
et al., PETITIONERS
06-340 v.
DEFENDERS OF WILDLIFE et al.
ENVIRONMENTAL PROTECTION AGENCY,
PETITIONER
06-549 v.
DEFENDERS OF WILDLIFE et al.
1 on writs of certiorari to the united states court of
appeals for the ninth circuit
[June 25, 2007]
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
These cases present a problem of conflicting "shalls." On the one hand, §402(b) of the Clean Water Act (CWA) provides that the Environmental Protection Agency (EPA) "shall" approve a State's application to administer a National Pollution Discharge Elimination System (NPDES) permitting program unless it determines that nine criteria are not satisfied. 33 U. S. C. §1342(b). On the other hand, shortly after the passage of the CWA, Congress enacted §7(a)(2) of the Endangered Species Act of 1973 (ESA), which commands that federal agencies "shall" insure that their actions do not jeopardize endangered species. 16 U. S. C. §1536(a)(2).
When faced with competing statutory mandates, it is our duty to give full effect to both if at all possible. See, e.g., Morton v. Mancari, 417 U. S. 535, 551 (1974) ("[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective"). The Court fails at this task. Its opinion unsuccessfully tries to reconcile the CWA and ESA by relying on a federal regulation, 50 CFR §402.03 (2006), which it reads as limiting the reach of §7(a)(2) to only discretionary federal actions, see ante, at 17-19. Not only is this reading inconsistent with the text and history of §402.03, but it is fundamentally inconsistent with the ESA itself.
In the celebrated "snail darter" case, TVA v. Hill, 437 U. S. 153 (1978), we held that the ESA "reveals a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies," id., at 185. Consistent with that intent, Chief Justice Burger's exceptionally thorough and admirable opinion explained that §7 "admits of no exception." Id., at 173. Creating precisely such an exception by exempting nondiscretionary federal actions from the ESA's coverage, the Court whittles away at Congress' comprehensive effort to protect endangered species from the risk of extinction and fails to give the Act its intended effect. After first giving Hill the attention it deserves, I will comment further on the irrelevance of §402.03 to these cases and offer other available ways to give effect to both CWA and the ESA. Having done so, I conclude by explaining why these cases should be remanded to the EPA for further proceedings.
I
In Hill, we were presented with two separate questions: (1) whether the ESA required a court to enjoin the operation of the nearly completed Tellico Dam and Reservoir Project because the Secretary of the Interior had determined that its operation would eradicate a small endangered fish known as a snail darter; and (2) whether post-1973 congressional appropriations for the completion of the Tellico Dam constituted an implied repeal of the ESA, at least insofar as it applied to the Dam. 437 U. S., at 156. More than 30 pages of our opinion explain our affirmative answer to the first question, see id., at 156-188, but just over four pages sufficed to explain our negative answer to the second, see id., at 189-193. While it is our ruling on the first question that is relevant to the cases before us, it is our refusal to hold that the ESA itself had been impliedly repealed that the majority strangely deems most significant. See ante, at 21-22.
In answering Hill's first question, we did not discuss implied repeals. On the contrary, that portion of the opinion contained our definitive interpretation of the ESA, in which we concluded that "the language, history, and structure of the [ESA] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." 437 U. S., at 174; see also id., at 177 (" 'The dominant theme pervading all Congressional discussion of the proposed [ESA] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources' " (quoting Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N. D. L. Rev. 315, 321 (1975) (emphasis added in Hill))). With respect to §7 in particular, our opinion could not have been any clearer. We plainly held that it "admits of no exception." 437 U. S., at 173 (emphasis added).1
Our opinion in Hill explained at length why §7 imposed obligations on "all federal agencies" to ensure that "actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered species." 437 U. S., at 173 (emphasis deleted; internal quotation marks omitted). Not a word in the opinion stated or suggested that §7 obligations are inapplicable to mandatory agency actions that would threaten the eradication of an endangered species. Nor did the opinion describe the Tennessee Valley Authority's (TVA) attempted completion of the Tellico Dam as a discretionary act. How could it? After all, if the Secretary of the Interior had not declared the snail darter an endangered species whose critical habitat would be destroyed by operation of the Tellico Dam, the TVA surely would have been obligated to spend the additional funds that Congress appropriated to complete the project.2 Unconcerned with whether an agency action was mandatory or discretionary, we simply held that §7 of the ESA
"reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies. " Id., at 185 (emphasis added).3
The fact that we also concluded that the post-1973 congressional appropriations did not impliedly repeal the ESA provides no support for the majority's contention that the obligations imposed by §7(a)(2) may be limited to discretionary acts. A few passages from the relevant parts of Hill belie that suggestion. After noting the oddity of holding that the interest in protecting the survival of a relatively small number of 3-inch fish "would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million," we found "that the explicit provisions of the Endangered Species Act require precisely that result." Id., at 172, 173. We then continued:
"One would be hard pressed to find a statutory provision whose terms were any plainer than those in §7 of the Endangered Species Act. Its very words affirmatively command all federal agencies 'to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence' of an endangered species or 'result in the destruction or modification of habitat of such species ... .' " Id., at 173 (quoting 16 U. S. C. §1536 (1976 ed.) (emphasis added in Hill)).
We also reviewed the ESA's history to identify a variety of exceptions that had been included in earlier legislation and unenacted proposals but were omitted from the final version of the 1973 statute. We explained that earlier endangered species legislation "qualified the obligation of federal agencies," but the 1973 Act purposefully omitted "all phrases which might have qualified an agency's responsibilities." 437 U. S., at 181, 182. Moreover, after observing that the ESA creates only a limited number of "hardship exemptions," see 16 U. S. C. §1539--none of which would apply to federal agencies--we applied the maxim expressio unius est expression alterius to conclude that "there are no exemptions in the Endangered Species Act for federal agencies,"437 U. S., at 188.
Today, however, the Court countenances such an exemption. It erroneously concludes that the ESA contains an unmentioned exception for nondiscretionary agency action and that the statute's command to enjoin the completion of the Tellico Dam depended on the unmentioned fact that the TVA was attempting to perform a discretionary act. But both the text of the ESA and our opinion in Hill compel the contrary determination that Congress intended the ESA to apply to "all federal agencies" and to all "actions authorized, funded, or carried out by them." Id., at 173 (emphasis deleted).
A transfer of NPDES permitting authority under §402(b) of the CWA is undoubtedly one of those "actions" that is "authorized" or "carried out" by a federal agency. See 16 U. S. C. §1536(b); 50 CFR §402.02 (defining "action" as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to . . . actions directly or indirectly causing modifications to the land, water, or air"). It follows from Hill that §7(a)(2) applies to such NPDES transfers--whether they are mandatory or discretionary.
II
Given our unequivocal holding in Hill that the ESA has "first priority" over all other federal action, 437 U. S., at 185, if any statute should yield, it should be the CWA. But no statute must yield unless it is truly incapable of coexistence. See, e.g., Morton, 417 U. S., at 551. Therefore, assuming that §402(b) of the CWA contains its own mandatory command, we should first try to harmonize that provision with the mandatory requirements of §7(a)(2) of the ESA.
The Court's solution is to rely on 50 CFR §402.03, which states that "Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control." The Court explains that this regulation "harmonizes the statutes by giving effect to the ESA's no-jeopardy mandate whenever an agency has discretion to do so, but by lifting that mandate when the agency is forbidden from considering such extrastatutory factors." Ante, at 17. This is not harmony, and it certainly isn't effect. Rather than giving genuine effect to §7(a)(2), the Court permits a wholesale limitation on the reach of the ESA. Its interpretation of §402.03 conflicts with the text and history of the regulation, as well as our interpretation of §7 in the "snail darter" case.
To begin with, the plain language of §402.03 does not state that its coverage is limited to discretionary actions. Quite the opposite, the most natural reading of the text is that it confirms the broad construction of §7 endorsed by our opinion in Hill. Indeed, the only way to read §402.03 in accordance with the facts of the case and our holding that §7 "admits of no exception[s]," 437 U. S., at 173, is that it eliminates any possible argument that the ESA does not extend to situations in which the discretionary federal involvement is only marginal.
The Court is simply mistaken when it says that it reads §402.03 "to mean what it says: that §7(a)(2)'s no-jeopardy duty covers only discretionary agency actions ... ." Ante, at 21 (emphasis added). That is not, in fact, what §402.03 "says." The word "only" is the Court's addition to the text, not the agency's. Moreover, that text surely does not go on to say (as the Court does) that the duty "does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred." Ibid. If the drafters of the regulation had intended such a far-reaching change in the law, surely they would have said so by using language similar to that which the Court uses today.
Nothing in the proceedings that led to the promulgation of the regulation suggests any reason for limiting the pre-existing understanding of the scope of §7's coverage. EPA codified the current version of §402.03 in 1986 as part of a general redrafting of ESA regulations. In the 1983 Notice of Proposed Rulemaking, the proposed version of §402.03 stated that "§7 and the requirements of this Part apply to all actions in which there is Federal involvement or control." 48 Fed. Reg. 29999 (1983). Without any explanation, the final rule inserted the word "discretionary" before "Federal involvement or control." 51 Fed. Reg. 19958 (1986).4 Clearly, if the Secretary of the Interior meant to limit the pre-existing understanding of the scope of the coverage of §7(a)(2) by promulgating this regulation, that intent would have been mentioned somewhere in the text of the regulations or in contemporaneous comment about them. See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 1001 (2005) (holding that an agency is free within "the limits of reasoned interpretation to change course" only if it "adequately justifies the change"); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 48 (1983) ("We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner"). Yet, the final rule said nothing about limiting the reach of §7 or our decision in Hill. Nor did it mention the change from the notice of proposed rulemaking. I can only assume, then, that the regulation does mean what both it and the notice of proposed rulemaking says: Section 7(a)(2) applies to discretionary federal action, but not only to discretionary action.
The only explanation the agency provided for §402.03 was the following:
"This section, which explains the applicability of section 7, implicitly covers Federal activities within the territorial jurisdiction of the United States and upon the high seas as a result of the definition of 'action' in §402.02. The explanation for the scope of the term 'action' is provided in the discussion under §402.01 above." 51 Fed. Reg. 19937.
This statement directs us to two sources: the definition of "action" in §402.02 and the "explanation for the scope of the term 'action' " in §402.01. Ibid. Both confirm that there was no intent to draw a distinction between discretionary and nondiscretionary actions.
Section 402.02 provides in relevant part:
"Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:
"(a) actions intended to conserve listed species or their habitat;
"(b) the promulgation of regulations . . . " (second and third emphases added.)
Actions in either of the described sub-categories are sometimes mandatory and sometimes discretionary. Likewise, as the italicized portions indicate, the term "action" expressly refers to "all" agency activities or programs "of any kind," regardless of whether they are discretionary or mandatory. By reading the term "discretionary" as a limitation on "action," the Court creates a contradiction in the EPA's own regulation.5
As for the final rule's explanation for the scope of the term 'action' in §402.01, that too is fully consistent with my interpretation of §402.03. That explanation plainly states that "all Federal actions including 'conservations programs' are subject to the consultation requirements of section 7(a)(2) if they 'may affect' listed species or their critical habitats." 51 Fed. Reg. 19929 (emphasis added). The regulation does not say all "discretionary" federal actions, nor does it evince an intent to limit the scope of §7(a)(2) in any way. Rather, it just restates that the ESA applies to "all" federal actions, just as the notice of proposed rulemaking did. This explanation of the scope of the word "action" is therefore a strong indication that the Court's reading of "discretionary" is contrary to its intended meaning.
An even stronger indication is the fact that at no point in the administrative proceedings in these cases did EPA even mention it.6 As an initial matter, it is worth emphasizing that even if EPA had relied on §402.03, its interpretation of the ESA would not be entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), because it is not charged with administering that statute, id., at 844 ("We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." (emphasis added)); Department of Treasury v. FLRA, 837 F. 2d 1163, 1167 (CADC 1988) ("[W]hen an agency interprets a statute other than that which it has been entrusted to administer, its interpretation is not entitled to deference"). The Departments of the Interior and Commerce, not EPA, are charged with administering the ESA. See Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S., 687, 703-704 (1995). And EPA has conceded that the Department of the Interior's biological opinion "did not discuss 50 CFR. 402.03, and it did not address the question whether the consultation that produced the [biological opinion] was required by the ESA." Pet. for Cert. in No. 06-549, p. 24; see App. 77-124 (never mentioning §402.03). Left with this unfavorable administrative record, EPA can only lean on the fact that the Department of the Interior has recently "clarified" its position regarding §402.03 in a different administrative proceeding. See Pet. for Cert. in No. 06-549, pp. 24-25; id., at 26 ("The recent F[ish and Wildlife Service] and N[ational Marine Fisheries Service] communications regarding Alaska's pending transfer application reflect those agencies' considered interpretations . . . of [50 CFR] 402.03"); App. to Pet. for Cert. in No. 06-340, pp. 103a-116a; see also ante, at 12 n. 5. We have long held, however, that courts may not affirm an agency action on grounds other than those adopted by the agency in the administrative proceedings. See SEC v. Chenery Corp., 318 U. S. 80, 87 (1943). The majority ignores this hoary principle of administrative law and substitutes a post-hoc interpretation of §7(a)(2) and §402.03 for that of the relevant agency. For that reason alone, these cases should be remanded to the agency. And for the other reasons I have given, §402.03 cannot be used to harmonize the CWA and the ESA.
III
There are at least two ways in which the CWA and the ESA can be given full effect without privileging one statute over the other.
A
The text of §7(a)(2) itself provides the first possible way of reconciling that provision with §402(b) of the CWA. The subsection reads:
"Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an 'agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section." 16 U. S. C. §1536(a)(2) (emphasis added).
The Court is certainly correct that the use of the word "shall" in §7(a)(2) imposes a mandatory requirement on the federal agencies. See ante, at 14. It is also correct that the ESA's "mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action." Ante, at 15. The Court is too quick to conclude, however, that this consultation requirement creates an irreconcilable conflict between this provision and §402(b) of the CWA. It rushes to this flawed judgment because of a basic conceptual error--an error that is revealed as early as the first paragraph of its opinion. Rather than attempting to find a way to give effect to §7(a)(2)'s consultation requirement, the Court frames the question presented as "whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. " Ante, at 1-2. The Court is not alone in this. The author of the Ninth Circuit opinion below also stated that the ESA "adds one requirement to the list of considerations under the Clean Water Act permitting transfer provision." 450 F. 3d, at 404 n. 2 (2006) (Berzon, J., concurring in denial of rehearing en banc) (emphasis in original). But while the ESA does mandate that the relevant agencies "consul[t]" with the Interior Department, that consultation process also provides a way for the agencies to give effect to both statutes.
The first step in the statutory consultation process is to identify whether any endangered species will be affected by an agency action. An agency proposing a particular action, such as an NPDES transfer, will typically ask the Secretary of the Interior whether any listed species may be present in the area of the proposed action and whether that action will "affect" those species. See 16 U. S. C. §1536(c). It is entirely possible that no listed species will be affected, and any anticipated conflict between the ESA and another statute will have been avoided at this threshold stage. If, however, the Secretary determines that a proposed action may affect an endangered species or its critical habitat, the agency must formally consult with the Secretary. This consultation culminates in the issuance of a "biological opinion," which "detail[s] how the agency action affects the species or its critical habitat." §1536(b)(3)(A); see also 50 CFR §402.14(h). Even at this stage, it is still possible that formal consultation will reveal that the agency action will not jeopardize any species. See, e.g., 63 Fed. Reg. 51199 (1998) (noting that FWS rendered a "no jeopardy" finding with respect to the transfer of permitting authority to Texas).
If the biological opinion concludes that the agency action would put a listed species in jeopardy, however, the ESA contains a process for resolving the competing demands of agency action and species protection. The ESA provides that "the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action." 16 U. S. C. §1536(b)(3)(A); see also 50 CFR §402.14(h)(3). The agency's regulations define "[r]easonable and prudent alternatives" as
"alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director [of FWS] believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. " 50 CFR §402.02.
Thus, in the face of any conflict between the ESA and another federal statute, the ESA and its implementing regulations encourage federal agencies to work out a reasonable alternative that would let the proposed action move forward "consistent with [its] intended purpose" and the agency's "legal authority," while also avoiding any violation of §7(a)(2).
When applied to the NPDES transfer program, the "reasonable and prudent alternatives" process would enable EPA and the Department of the Interior to develop a substitute that would allow a transfer of permitting authority and would not jeopardize endangered species. Stated differently, the consultation process would generate an alternative course of action whereby the transfer could still take place--as required by §402(b) of the CWA--but in such a way that would honor the mandatory requirements of §7(a)(2) of the ESA. This should come as no surprise to EPA, as it has engaged in pre-transfer consultations at least six times in the past and has stated that it is not barred from doing so by the CWA.7
Finally, for the rare case in which no "reasonable and prudent alternative" can be found, Congress has provided yet another mechanism for resolving any conflicts between the ESA and a proposed agency action. In 1978, shortly after our decision in Hill, Congress amended the ESA to create the "Endangered Species Committee," which it authorized to grant exemptions from §7(a)(2). 16 U. S. C. §1536(e). Because it has the authority to approve the extinction of an endangered species, the Endangered Species Committee is colloquially described as the "God Squad" or "God Committee." In light of this weighty responsibility, Congress carefully laid out requirements for the God Committee's membership,8 procedures,9 and the factors it must consider in deciding whether to grant an exemption.10
As the final arbiter in situations in which the ESA conflicts with a proposed agency action, the God Committee embodies the primacy of the ESA's mandate and serves as the final mechanism for harmonizing that Act with other federal statutes. By creating this Committee, Congress recognized that some conflicts with the ESA may not be capable of resolution without having to forever sacrifice some endangered species. At the same time, the creation of this last line of defense reflects Congress' view that the ESA should not yield to another federal action except as a final resort and except when authorized by high level officials after serious consideration. In short, when all else has failed and two federal statutes are incapable of resolution, Congress left the choice to the Committee--not to this Court; it did not limit the ESA in the way the majority does today.
B
EPA's regulations offer a second way to harmonize the CWA with the ESA. After EPA has transferred NPDES permitting authority to a State, the agency continues to oversee the State's permitting program. See Arkansas v. Oklahoma, 503 U. S. 91, 105 (1992) ("Congress preserved for the Administrator broad authority to oversee state permit programs"). If a state permit is "outside the guidelines and the requirements" of the CWA, EPA may object to it and block its issuance. See 33 U. S. C. §1342(d)(2); 66 Fed. Reg. 11206 (2001). Given these ongoing responsibilities, EPA has enacted a regulation that requires a State to enter into a Memorandum of Agreement (MOA) that sets forth the particulars of the agency's oversight duties. See 40 CFR §123.24(a) (2006).
The regulation governing MOAs contains several detailed requirements. For instance, the regulation states that an MOA must contain "[p]rovisions specifying classes and categories of permit applications, draft permits and proposed permits that the State will send to the [EPA] Regional Administrator for review, comment and, where applicable, objection," §123.24(b)(2); "[p]rovisions specifying the frequency and content of reports, documents and other information which the State is required to submit to the EPA," §123.24(b)(3); and "[p]rovisions for coordination of compliance monitoring activities by the State and by EPA," §123.24(b)(4)(i). More generally, the regulation provides that an MOA "may include other terms, conditions, or agreements" that are "relevant to the administration and enforcement of the State's regulatory program." §123.24(a). Under the MOA regulation, furthermore, EPA will not approve any MOA that restricts its statutory oversight responsibility. Ibid.
Like the §7(a)(2) consultation process described above, MOAs provide a potential mechanism for giving effect to §7 of the ESA while also allowing the transfer of permitting authority to a State. It is important to remember that EPA must approve an MOA prior to the transfer of NPDES authority. As such, EPA can use--and in fact has used--the MOA process to structure its later oversight in a way that will allow it to protect endangered species in accordance with §7(a)(2) of the ESA. EPA might negotiate a provision in the MOA that would require a State to abide by the ESA requirements when issuing pollution permits. See Brief for American Fisheries Society et al. as Amici Curiae 28. ("In the Maine MOA, for example, EPA and the state agreed that state permits would protect ESA-listed species by ensuring compliance with state water quality standards"). Alternatively, "EPA could require the state to provide copies of draft permits for discharges in particularly sensitive habitats such as those of ESA-listed species or for discharges that contain a pollutant that threatens ESA-listed wildlife." Id., at 10. Or the MOA might be drafted in a way that would allow the agency to object to state permits that would jeopardize any and all endangered species. See id., at 28 (explaining that the Maine MOA includes a provision allowing EPA to "object to any state permit that risks harm to a listed species by threatening water quality"). These are just three of many possibilities. I need not identify other ways EPA could use the MOA process to comply with the ESA; it is enough to observe that MOAs provide a straightforward way to give the ESA its full effect without restricting §7(a)(2) in the way the Court does.
IV
As discussed above, I believe that the Court incorrectly restricts the reach of §7(a)(2) to discretionary federal actions. See Part II, supra. Even if such a limitation were permissible, however, it is clear that EPA's authority to transfer permitting authority under §402(b) is discretionary.11
The EPA Administrator's authority to approve state permit programs pursuant to §402(b) of the CWA does not even fit within the Court's description of the category of mandatory actions that the Court holds are covered by the ESA. In the Court's words, that category includes actions "that an agency is required by statute to undertake once certain specified triggering events have occurred." Ante, at 22. The "triggering event" for EPA's approval is simply the filing of a satisfactory description of the State's proposed program. See 33 U. S. C. §1342(b). The statute then commands that the EPA Administrator "shall approve" the submitted program unless he determines that state law does not satisfy nine specified conditions. Those conditions are not "triggering events"; they are potential objections to the exercise of the Administrator's authority.
What is more, §402(b) is a perfect example of why our analysis should not end simply because a statute uses the word "shall." Instead, we must look more closely at its listed criteria to determine whether they allow for discretion, despite the use of "shall." After all, as then-Justice Rehnquist's dissenting opinion in the "snail darter" case explains, a federal statute using the word "shall" will sometimes allow room for discretion. See Hill, 437 U. S. at 211-212 (Rehnquist, J., dissenting).12 In these cases, there is significant room for discretion in EPA's evaluation of §402(b)'s nine conditions. The first criterion, for example, requires the EPA Administrator to examine five other statutes and ensure that the State has adequate authority to comply with each. 33 U. S. C. §1342(b)(1)(A). One of those five statutes, in turn, expressly directs the Administrator to exercise his "judgment." §1312. Even the Court acknowledges that EPA must exercise "some judgment in determining whether a State has demonstrated that it has the authority to carry out §402(b)'s enumerated statutory criteria." Ante, at 24. However, in the very same breath, the Court states that the dispositive fact is that "the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list." Ibid. This reasoning flouts the Court's own logic. Under the Court's reading of §402.03, §7(a)(2) applies to discretionary federal actions of any kind. The Court plainly acknowledges that EPA exercises discretion when deciding whether to transfer permitting authority to a State. If we are to take the Court's approach seriously, once any discretion has been identified--as it has here--§7(a)(2) must apply.13
The MOA regulation described in Part III-B, supra, also demonstrates that an NPDES transfer is not as ministerial a task as the Court would suggest. The agency retains significant discretion under §123.24 over the content of an MOA, which of course must be approved prior to a transfer. For instance, EPA may require a State to file reports on a weekly basis or a monthly basis. It may require a State to submit only certain classes and categories of permit applications. And it may include any additional terms and conditions that are relevant to the enforcement of the NPDES program. There is ample room for judgment in all of these areas, and EPA has exercised such judgment in the past when approving MOAs from many States. See, e.g., Approval of Application by Maine to Administer the NPDES Program, 66 Fed. Reg. 12791, (2001); Approval of Application by Maine to Administer the NPDES Program; Texas, 63 Fed. Reg. 51165 (1998).
In fact, in an earlier case raising a question similar to this one, see American Forest & Paper Assn. v. EPA, 137 F. 3d 291, 298-299 (CA5 1998), EPA itself explained how 40 CFR §123.24 gives it discretion over the approval of a State pollution control program, see Brief for EPA in No. 96-60874 (CA5). Arguing that "[i]ndicia of discretionary involvement or control abound in [its] regulations," the agency listed its MOA regulation as a prime example.14 Again, because EPA's approval of a State application to administer an NPDES program entails significant--indeed, abounding--discretion, I would find that §7(a)(2) of the ESA applies even under the Court's own flawed theory of these cases.
V
Mindful that judges must always remain faithful to the intent of the legislature, Chief Justice Burger closed his opinion in the "snail darter" case with a reminder that "[o]nce the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end." Hill, 437 U. S., at 194. This Court offered a definitive interpretation of the Endangered Species Act nearly 30 years ago in that very case. Today the Court turns its back on our decision in Hill and places a great number of endangered species in jeopardy, including the cactus ferruginous pygmy-owl and Pima pineapple cactus at issue here. At the risk of plagiarizing Chief Justice Burger's fine opinion, I think it is appropriate to end my opinion just as he did--with a quotation attributed to Sir Thomas More that has as much relevance today as it did three decades ago. This quotation illustrates not only the fundamental character of the rule of law embodied in §7 of the ESA but also the pernicious consequences of official disobedience of such a rule. Repetition of that literary allusion is especially appropriate today:
"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . . I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? . . . This country's planted thick with laws from coast to coast--Man's laws, not God's--and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967) (quoted in Hill, 437 U. S., at 195).
Although its reasons have shifted over time, at both the administrative level and in the federal courts, EPA has insisted that the requirements of §7(a)(2) of the ESA do not apply to its decision to transfer permitting authority under §402(b) of the CWA. See App. 114; Brief for Petitioner EPA 16, 42. As I have explained above, that conclusion is contrary to the text of §7(a)(2), our decision in the TVA v. Hill, and the regulation on which the agency has since relied and upon which the Court relies on today. Accordingly, I would hold that EPA's decision was arbitrary and capricious under the Administrative Procedure Act, see 5 U. S. C. §706(2)(A), and would remand to the agency for further proceedings consistent with this opinion.
I respectfully dissent.
APPENDIX TO OPINION OF STEVENS, J.
33 U. S. C. §1342(b)
"(b) State permit programs.
"At any time after the promulgation of the guidelines required by subsection (i)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each submitted program unless he determines that adequate authority does not exist:
"(1) To issue permits which--
"(A) apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 1316, 1317, and 1343 of this title;
"(B) are for fixed terms not exceeding five years; and
"(C) can be terminated or modified for cause including, but not limited to, the following:
"(i) violation of any condition of the permit;
"(ii) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts;
"(iii) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge;
"(D) control the disposal of pollutants into wells;
"(2)(A) To issue permits which apply, and insure compliance with, all applicable requirements of section 1318 of this title; or
"(B) To inspect, monitor, enter, and require reports to at least the same extent as required in section 1318 of this title;
"(3) To insure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application;
"(4) To insure that the Administrator receives notice of each application (including a copy thereof) for a permit;
"(5) To insure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing;
"(6) To insure that no permit will be issued if, in the judgment of the Secretary of the Army acting through the Chief of Engineers, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired thereby;
"(7) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement;
"(8) To insure that any permit for a discharge from a publicly owned treatment works includes conditions to require the identification in terms of character and volume of pollutants of any significant source introducing pollutants subject to pretreatment standards under section 1317(b) of this title into such works and a program to assure compliance with such pretreatment standards by each such source, in addition to adequate notice to the permitting agency of (A) new introductions into such works of pollutants from any source which would be a new source as defined in section 1316 of this title if such source were discharging pollutants, (B) new introductions of pollutants into such works from a source which would be subject to section 1311 of this title if it were discharging such pollutants, or (C) a substantial change in volume or character of pollutants being introduced into such works by a source introducing pollutants into such works at the time of issuance of the permit. Such notice shall include information on the quality and quantity of effluent to be introduced into such treatment works and any anticipated impact of such change in the quantity or quality of effluent to be discharged from such publicly owned treatment works; and
(9) To insure that any industrial user of any publicly owned treatment works will comply with sections 1284(b), 1317, and 1318 of this title.
NATIONAL ASSOCIATION OF HOME BUILDERS,
et al., PETITIONERS
06-340 v.
DEFENDERS OF WILDLIFE et al.
ENVIRONMENTAL PROTECTION AGENCY,
PETITIONER
06-549 v.
DEFENDERS OF WILDLIFE et al.
1 on writs of certiorari to the united states court of
appeals for the ninth circuit
[June 25, 2007]
Justice Breyer, dissenting.
I join Justice Stevens' dissent, while reserving judgment as to whether §7(a)(2) of the Endangered Species Act of 1973, 16 U. S. C. §1536(a)(2), really covers every possible agency action even of totally unrelated agencies--such as, say, a discretionary determination by the Internal Revenue Service whether to prosecute or settle a particular tax liability, see 26 U. S. C. §7121.
At the same time I add one additional consideration in support of his (and my own) dissenting views. The Court emphasizes that "[b]y its terms, the statutory language [of §402(b) of the Clean Water Act, 33 U. S. C. §1342(b)] is mandatory and the list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application." Ante, at 14 (emphasis added). My own understanding of agency action leads me to believe that the majority cannot possibly be correct in concluding that the structure of §402(b) precludes application of §7(a)(2) to the EPA's discretionary action. See ante, at 19-21 (Stevens, J., dissenting). That is because grants of discretionary authority always come with some implicit limits attached. See L. Jaffe, Judicial Control of Administrative Action 359 (1965) (discretion is "a power to make a choice" from a "permissible class of actions"). And there are likely numerous instances in which, prior to, but not after, the enactment of §7(a)(2), the statute might have implicitly placed "species preservation" outside those limits.
To take one example, consider the statute that once granted the old Federal Power Commission (FPC) the authority to grant a "certificate of public convenience and necessity" to permit a natural gas company to operate a new pipeline. See 15 U. S. C. §717f(c)(1)(A). It says that "a certificate shall be issued to any qualified applicant therefor . . . if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed . . . and that the proposed service . . . is or will be required by the present or future public convenience and necessity." §717f(e).
Before enactment of the Endangered Species Act of 1973, 87 Stat. 884, it is at least uncertain whether the FPC could have withheld a certificate simply because a natural gas pipeline might threaten an endangered animal, for given the Act's language and history, species preservation does not naturally fall within its terms. But we have held that the Endangered Species Act changed the regulatory landscape, "indicat[ing] beyond doubt that Congress intended endangered species to be afforded the highest of priorities." TVA v. Hill, 437 U. S. 153, 174 (1978) (emphasis added). Indeed, the Endangered Species Act demonstrated "a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies." Id., at 185. And given a new pipeline's potential effect upon habitat and landscape, it seems reasonable to believe, once Congress enacted the new law, the FPC's successor (the Federal Energy Regulatory Commission) would act within its authority in taking species-endangering effects into account.
To take another example, the Food and Drug Administration (FDA) has, by statute, an "exclusive" list of criteria to consider in reviewing applications for approval of a new drug. See 21 U. S. C. §355(d) ("If the Secretary finds . . . [e.g.,] the investigations . . . do not include adequate tests by all methods reasonably applicable to show whether or not such drug is safe . . . he shall issue an order refusing to approve the application"). Preservation of endangered species is not on this "exclusive" list of criteria. Yet I imagine that the FDA now should take account, when it grants or denies drug approval, of the effect of manufacture and marketing of a new drug upon the preservation or destruction of an endangered species.
The only meaningful difference between the provision now before us, §402(b) of the Clean Water Act, and the energy- and drug-related statutes that I have mentioned is that the very purpose of the former is to preserve the state of our natural environment--a purpose that the Endangered Species Act shares. That shared purpose shows that §7(a)(2) must apply to the Clean Water Act a fortiori.
2 FOOTNOTES
Footnote *
Together with No. 06-549, Environmental Protection Agency v. Defenders of Wildlife et al., also on certiorari to the same court.
3 FOOTNOTES
Footnote 1
The State must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit. 33 U. S. C. §§1342(d)(1), (2); see also 40 CFR §123.44(c) (2006). If the State cannot address the EPA's concerns, authority over the permit reverts to the EPA. 33 U. S. C. §1342(d)(4).
Footnote 2
The State must demonstrate that it has the ability: (1) to issue fixed-term permits that apply and ensure compliance with the CWA's substantive requirements and which are revocable for cause; (2) to inspect, monitor, and enter facilities and to require reports to the extent required by the CWA; (3) to provide for public notice and public hearings; (4) to ensure that the EPA receives notice of each permit application; (5) to ensure that any other State whose waters may be affected by the issuance of a permit may submit written recommendations and that written reasons be provided if such recommendations are not accepted; (6) to ensure that no permit is issued if the Army Corps of Engineers concludes that it would substantially impair the anchoring and navigation of navigable waters; (7) to abate violations of permits or the permit program, including through civil and criminal penalties; (8) to ensure that any permit for a discharge from a publicly owned treatment works includes conditions requiring the identification of the type and volume of certain pollutants; and (9) to ensure that any industrial user of any publicly owned treatment works will comply with certain of the CWA's substantive provisions. §§1342(b)(1)-(9).
Footnote 3
At the time when Arizona applied, the EPA had already transferred permitting authority to local authorities in 44 other States and several United States Territories.
Footnote 4
By its terms, §7(a)(2)'s consultation requirement applies only to "action[s] authorized, funded, or carried out" by "Federal agenc[ies]."
Footnote 5
We also note that the agencies involved have resolved any ambiguity in their positions going forward. Following the issuance of the panel's opinion below, the EPA--in connection with the State of Alaska's pending application for transfer of NPDES permitting authority--requested confirmation from the FWS and NMFS of the EPA's position that "the no-jeopardy and consultation duties of ESA Section 7(a)(2) do not apply to approval of a State's application to administer the NPDES program," in the apparent hope that obtaining those agencies' views "in advance of processing Alaska's application may avoid a repetition of" the confusion that occurred during the Arizona permitting process. App. to Pet. for Cert. in No. 06-549, at 96a, 95a. In response, both the FWS and the NMFS confirmed their understanding that "there is no need to conduct Section 7 consultations on proposed actions to approve State NPDES programs because such actions are not the cause of any impact on listed species and do not constitute discretionary federal agency actions to which Section 7 applies." Id., at 107a; see also id., at 116a (NMFS "concur[s] with EPA's conclusion that EPA is not required to engage in section 7 consultation on applications to approve State programs in situations under Section 402(b) of the CWA").
Footnote 6
Nor is there any independent right to public comment with regard to consultations conducted under §7(a)(2)--a consultation process that we conclude, in any case, was not required here. See 51 Fed. Reg. 19928 (1986) ("Nothing in section 7 authorizes or requires the Service to provide for public involvement (other than that of the applicant) in the 'interagency' consultation process").
Footnote 7
Justice Stevens' dissenting opinion attempts to paper over this conflict by suggesting that the EPA and the agencies designated by the Secretary of the Interior could reconcile the commands of the CWA and the ESA by "generat[ing] an alternative course of action whereby the transfer could still take place ... but in such a way that would honor the mandatory requirements of §7(a)(2)." Post, at 15. For example, it suggests that the EPA could condition transfers of permitting authority on the State's acceptance of additional continuing oversight by the EPA (presumably beyond that oversight already contemplated by the CWA's statutory language). Post, at 17-19. But such a take-it-or-leave-it approach, no less than a straightforward rejection of a transfer application, would impose conditions on an NPDES transfer beyond those set forth in §402(b), and thus alter the CWA's statutory command.
Footnote 8
It does not matter whether this alteration is characterized as an amendment or a partial repeal. Every amendment of a statute effects a partial repeal to the extent that the new statutory command displaces earlier, inconsistent commands, and we have repeatedly recognized that implied amendments are no more favored than implied repeals. See, e.g., Regional Rail Reorganization Act Cases, 419 U. S. 102, 134 (1974) (" 'A new statute will not be read as wholly or even partially amending a prior one unless there exists a 'positive repugnancy' between the provisions of the new and those of the old that cannot be reconciled' ") (quoting In re Penn Central Transportation Co., 384 F. Supp. 895, 943 (Sp. Ct. R. R. R. A. 1974)); United States v. Welden, 377 U. S. 95, 103, n. 12 (1964) ("Amendments by implication ... are not favored"); United States v. Madigan, 300 U. S. 500, 506 (1937) ("[T]he modification by implication of the settled construction of an earlier and different section is not favored").
Footnote 9
The dissent is incorrect in suggesting that "if the Secretary of the Interior had not declared the snail darter an endangered species ... the TVA surely would have been obligated to spend the additional funds that Congress appropriated to complete the project." Post, at 4. To the contrary, the Court in TVA v. Hill found that there was no clear repugnancy between the ESA and the Acts appropriating funds to the TVA because the latter simply did not require the agency to use any of the generally appropriated funds to complete the Tellico Dam project. 437 U. S., at 189-193.
Footnote 10
For example, §402(b) requires the EPA to consider whether the State has the legal authority to enforce applicable water quality standards--some of which, in turn, are informed by the "judgment" of the EPA's Administrator. 33 U. S. C. §1342(b)(1)(A); see also, e.g., §1312. But the permit transfer process does not itself require scrutiny of the underlying standards or of their effect on marine or wildlife--only of the state applicant's "authority . . . [t]o issue permits which . . . apply, and insure compliance with" the applicable standards. §1342(b)(1)(A) (emphasis added). In any event, respondents do not dispute that, as both the EPA and the FWS determined, the transfer of permitting authority to Arizona officials would have no adverse water quality related impact on any listed species. See App. to Pet. for Cert. in No. 06-340, at 562-563, 615-617.
Footnote 11
Respondents also contend that the EPA has taken, or will take, other discretionary actions apart from the transfer authorization that implicate the ESA. For example, they argue that the EPA's alleged provision of funding to Arizona for the administration of its clean water programs is the kind of discretionary agency action that is subject to §7(a)(2). However, assuming this is true, any such funding decision is a separate agency action that is outside the scope of this lawsuit. Respondents also point to the fact that, following the transfer of permitting authority, the EPA will retain oversight authority over the state permitting process, including the power to object to proposed permits. But the fact that the EPA may exercise discretionary oversight authority--which may trigger §7(a)(2)'s consultation and no-jeopardy obligations--after the transfer does not mean that the decision authorizing the transfer is itself discretionary.
4 FOOTNOTES
Footnote 1
See also Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 692 (1995) ("Section 7 requires federal agencies to ensure that none of their activities, including the granting of licenses and permits, will jeopardize the continued existence of endangered species 'or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical' " (emphasis added)).
Footnote 2
The Court misreads this sentence and, in so doing, overreads our decision in Hill. Justice Alito maintains that Hill held that the "acts appropriating funds to the TVA ... did not require the agency to use any of the generally appropriated funds to complete the Tellico Dam project." Ante, at 23-24, n. 9. But Hill said no such thing. That case only held that the subsequent appropriation of funds for the Tellico Dam Project could not overcome the mandatory requirements of §7 of the ESA; it did not hold that the TVA would not have been required to spend any and all appropriated funds if the ESA had never been passed. See Hill, 437 U. S., at 189-190. If the ESA had never been enacted and did not stand in the way of the completion of the Tellico Dam, there is no doubt that the TVA would have finished the project that Congress had funded.
Footnote 3
The road not taken in Hill also helps to clarify our interpretation that §7 was not limited to discretionary agency action. Throughout the course of the litigation, the TVA insisted that §7 did not refer to "all the actions that an agency can ever take." Brief. for Petitioner in Tennessee Valley Authority v. Hill, O.T. 1977, No. 76-1701, p. 26. Instead, the TVA sought to restrict §7 to only those actions for "which the agency has reasonable decision-making alternatives before it." Ibid. We rejected that narrow interpretation, stating that the only way to sustain the TVA's position would be to "ignore the ordinary meaning of plain language." Hill, 437 U. S., at 173.
Footnote 4
See also Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look From A Litigator's Perspective, 21 Envtl. L. 499, 529 (1991) (noting that the agency did not explain the addition of the word "discretionary"); Weller, Limiting the Scope of the Endangered Species Act: Discretionary Federal Involvement or Control Under Section 402.03, 5 Hastings W.-Nw. J. Envtl. L. & Pol'y 309, 311, 334 (Spring 1999) (same)
Footnote 5
Petitioner National Association of Home Builders (NAHB) points to the following language from the final rule as an indication that §7 only applies to discretionary action: " 'a Federal agency's responsibility under section 7(a)(2) permeates the full range of discretionary authority held by that agency.' " Brief for Petitoioners NAHB et al. 32 (quoting 51 Fed. Reg. 19937). However, that language is found in a different section of the Final Rule--the section describing the definition of " '[r]easonable and prudent alternatives' " under 50 CFR §402.02. When put in its proper context, the cited language simply indicates that any "reasonable and prudent alternative" may involve the "maximum exercise federal agency authority when to do so is necessary, in the opinion of the Service, to avoid jeopardy." 51 Fed. Reg. 19926. If that isn't enough, the quoted text supports my reading of §402.03 even on petitioner's reading. By indicating that an agency's §7(a)(2) responsibility "permeates the full range" of its discretionary authority, EPA confirmed that the ESA covers the all discretionary actions.
Footnote 6
EPA also did not rely on §402.03 in the Court of Appeals. See 420 F. 3d 946, 968 ("EPA makes no argument that its transfer decision was not a 'discretionary' one within the meaning of 50 CFR §402.03. . . . We may not affirm the EPA's transfer decision on grounds not relied upon by the agency. As the EPA evidently does not regard §402.03 as excluding the transfer decision, we should not so interpret the regulations." (citations omitted)).
Footnote 7
See, e.g., 63 Fed. Reg. 51199 (1998) (approving Texas' application to administer the NPDES program after consultation with FWS and stating that "EPA believes that section 7 does apply" to EPA's action); 61 Fed. Reg. 65053 (1996) (approving Oklahoma's NPDES application after consultation with FWS and stating that "EPA's approval of the State permitting program under section 402 of the Clear Water Act is a federal action subject to [§7's consultation] requirement"); see also Tr. of Oral Arg. 5 (conceding that EPA conducted six pre-transfer consultations in the past).
Footnote 8
The Endangered Species Committee is composed of six high-ranking federal officials and a representative from each affected State appointed by the President. See 16 U. S. C. §1536(e)(3).
Footnote 9
See 16 U. S. C. §§1536(e)-(l).
Footnote 10
Title 16 U. S. C. §1536(h)(1) provides:
"The Committee shall grant an exemption from the requirements of subsection (a)(2) for an agency action if, by a vote of not less than five of its members voting in person--
"(A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) and on such other testimony or evidence as it may receive, that--
"(i) there are no reasonable and prudent alternatives to the agency action;
"(ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest;
"(iii) the action is of regional or national significance; and
"(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources prohibited by subsection (d); and
"(B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned."
Footnote 11
Because it is quite lengthy, I include the full text of §402(b) in an appendix to this dissent.
Footnote 12
See Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 432-433, n. 9 (1995) ("Though 'shall' generally means 'must,' legal writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,' or even 'may.' See D. Mellinkoff, Mellinkoff's Dictionary of American Legal Usage 402-403 (1992) ('shall' and 'may' are 'frequently treated as synonyms' and their meaning depends on context); B. Garner, Dictionary of Modern Legal Usage 939 (2d ed. 1995) ("Courts in virtually every English-speaking jurisdiction have held--by necessity--that shall means may in some contexts, and vice versa.')").
Footnote 13
The Court also claims that the "basic principle announced in" Department of Transportation v. Public Citizen, 541 U. S. 752 (2004),--"that an agency cannot be considered the legal 'cause' of an action that it has no statutory discretion not to take"--supports its reliance on §402.03. Ante, at 20. First of all, the Court itself recognizes that it must distance itself from that case, ibid., because Public Citizen dealt with a procedural requirement under the National Environmental Policy Act (NEPA), not a substantive requirement like that imposed by §7(a)(2) of the ESA, see TVA v. Hill, 437 U. S. 158, 188, n. 34 (1978) (holding that NEPA cases are "completely inapposite" to the ESA context). What the Court does not recognize, however, is that what it views as the "basic principle" of Public Citizen is stated too broadly and therefore inapplicable to this case. Ante, at 20.
Our decision in Public Citizen turned on what we called "a critical feature of the case": that the Federal Motor Carrier Safety Administration (FMCSA) had "no ability to countermand" the President's lifting a moratorium that prohibited certain motor carriers from obtaining authority to operate within the United States. 541 U. S., at 766. Once the President decided to lift that moratorium, and once the relevant vehicles had entered the United States, FMCSA was required by statute to register the vehicles if certain conditions were met. Ibid. ("Under FMCSA's entirely reasonable reading of this provision, it must certify any motor carrier that can show that it is willing and able to comply with the various substantive requirements for safety and financial responsibility contained in DOT regulations; only the moratorium prevented it from doing so for Mexican motor carriers before 2001" (emphasis deleted)). Therefore, any potential NEPA concerns were generated by another decisionmaker, the President, and not the FMCSA. Here, by contrast, EPA is not required to act ministerially once another person or agency has made a decision. Instead, EPA must exercise its own judgment when considering the transfer of NPDES authority to a State; it also has its own authority to deny such a transfer. Any effect on endangered species will be caused, even if indirectly, by the agency's own decision to transfer NPDES authority. Cf. 50 CFR §402.02 (providing that the ESA will apply to all agency activities that "directly or indirectly caus[e] modifications to the land, water, or air" (emphasis added)).
Footnote 14
EPA also discussed several other regulations that give it discretion. For example, under 40 CFR §123.61(b), EPA is required to solicit public comments on a State's transfer application, and it must "approve or disapprove the program" after "taking into consideration all comments received." As EPA explained in its Fifth Circuit brief, if it "were simply acting in a ministerial fashion, such weighing of the merits of public comments would be unnecessary." Brief for EPA in No. 96-60874 (CA5).
6
NORTON, SECRETARY OF THE INTERIOR, et al. v. SOUTHERN UTAH WILDERNESS ALLIANCE et al.
1 certiorari to the united states court of appeals for the tenth circuit
No. 03-101. Argued March 29, 2004--Decided June 14, 2004
The Bureau of Land Management (BLM), an Interior Department agency, manages the Utah land at issue here under the Federal Land Policy and Management Act of 1976 (FLPMA). Pursuant to 43 U. S. C. §1782, the Secretary of the Interior has identified certain federal lands as "wilderness study areas" (WSAs) and recommended some of these as suitable for wilderness designation. Land designated as wilderness by Act of Congress enjoys special protection; until Congress acts, the Secretary must "manage [WSAs] ... so as not to impair the[ir] suitability for preservation as wilderness." §1782(c). In addition, each WSA or other area is managed "in accordance with" a land use plan, §1732(a), a BLM document which generally describes, for a particular area, allowable uses, goals for the land's future condition, and next steps. 43 CFR §1601.0-5(k). Respondents Southern Utah Wilderness Alliance and others (collectively SUWA) sought declaratory and injunctive relief for BLM's failure to act to protect Utah public lands from environmental damage caused by off-road vehicles (ORVs), asserting three claims relevant here, and contending that they could sue under the Administrative Procedure Act (APA) to "compel agency action unlawfully withheld or unreasonably delayed," 5 U. S. C. §706(1). The Tenth Circuit reversed the District Court's dismissal of the claims.
Held: BLM's alleged failures to act are not remediable under the APA. Pp. 5-17.
(a) A §706(1) claim can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. The discrete-action limitation precludes a broad programmatic attack such as that rejected in Lujan v. National Wildlife Federation, 497 U. S. 871, and the required-action limitation rules out judicial direction of even discrete agency action that is not demanded by law. Pp. 5-9.
(b) SUWA first claims that BLM violated §1782(c)'s nonimpairment mandate by permitting ORV use in certain WSAs. While §1782(c) is mandatory as to the object to be achieved, it leaves BLM discretion to decide how to achieve that object. SUWA argues that the nonimpairment mandate will support an APA suit, but a general deficiency in compliance lacks the requisite specificity. The principal purpose of this limitation is to protect agencies from undue judicial interference with their lawful discretion and to avoid judicial entanglement in abstract policy disagreements which courts lack the expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered to decide whether compliance was achieved. The APA does not contemplate such pervasive federal-court oversight. Pp. 9-11.
(c) SUWA also claims that BLM's failure to comply with provisions of its land use plans contravenes the requirement that the Secretary manage public lands in accordance with such plans, 43 U. S. C. §1732(a). A land use plan, however, is a tool to project present and future use. Unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and restrains actions, but does not prescribe them. A statement about what BLM plans to do, if it has funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for a §706(1) suit. The land use plan statements at issue here are not a legally binding commitment enforceable under §706(1). Pp. 11-16.
(d) SUWA finally contends that BLM did not fulfill its obligation under the National Environmental Policy Act of 1969 to take a "hard look" at whether to supplement its environmental impact statement (EIS) to take increased ORV use into account. Because the applicable regulation requires an EIS to be supplemented where there "are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts," 40 CFR §1502.9(c)(1)(ii), an agency must take a "hard look" at new information to assess the need for supplementation, Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 385. However, supplementation is required only if "there remains major Federal actio[n] to occur," id., at 374. Since the BLM's approval of its land use plan was the "action" that required the EIS; and since that plan has already been approved; there is no ongoing "major Federal action" that could require supplementation. Pp. 16-17.
301 F. 3d 1217, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court.
GALE NORTON, SECRETARY OF THE INTERIOR,
et al., PETITIONERS v. SOUTHERN UTAH
WILDERNESS ALLIANCE et al.
1 on writ of certiorari to the united states court of appeals for the tenth circuit
[June 14, 2004]
Justice Scalia delivered the opinion of the Court.
In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to "compel agency action unlawfully withheld or unreasonably delayed," 5 U. S. C. §706(1), extends to the review of the United States Bureau of Land Management's stewardship of public lands under certain statutory provisions and its own planning documents.
I
Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM's management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. §1701 et seq., which "established a policy in favor of retaining public lands for multiple use management." Lujan v. National Wildlife Federation, 497 U. S. 871, 877 (1990). "Multiple use management" is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, "including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values." 43 U. S. C. §1702(c). A second management goal, "sustained yield," requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future. §1702(h). To these ends, FLPMA establishes a dual regime of inventory and planning. Sections 1711 and 1712, respectively, provide for a comprehensive, ongoing inventory of federal lands, and for a land use planning process that "project[s]" "present and future use," §1701(a)(2), given the lands' inventoried characteristics.
Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses. A pre-FLPMA enactment, the Wilderness Act of 1964, 78 Stat. 890, provides that designated wilderness areas, subject to certain exceptions, "shall [have] no commercial enterprise and no permanent road," no motorized vehicles, and no manmade structures. 16 U. S. C. §1133(c). The designation of a wilderness area can be made only by Act of Congress, see 43 U. S. C. §1782(b).
Pursuant to §1782, the Secretary of the Interior has identified so-called "wilderness study areas" (WSAs), roadless lands of 5,000 acres or more that possess "wilderness characteristics," as determined in the Secretary's land inventory. §1782(a); see 16 U. S. C. §1131(c). As the name suggests, WSAs (as well as certain wild lands identified prior to the passage of FLPMA) have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. 1 U. S. Dept. of Interior, BLM, Utah Statewide Wilderness Study Report 3 (Oct. 1991). This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that "the Secretary shall continue to manage such lands . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness." 43 U. S. C. §1782(c). This nonimpairment mandate applies to all WSAs identified under §1782, including lands considered unsuitable by the Secretary. See §§1782(a), (b); App. 64 (BLM Interim Management Policy for Lands Under Wilderness Review).
Aside from identification of WSAs, the main tool that BLM employs to balance wilderness protection against other uses is a land use plan--what BLM regulations call a "resource management plan." 43 CFR §1601.0-5(k) (2003). Land use plans, adopted after notice and comment, are "designed to guide and control future management actions," §1601.0-2. See 43 U. S. C. §1712; 43 CFR §1610.2 (2003). Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps. §1601.0-5(k). Under FLPMA, "[t]he Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans ... when they are available." 43 U. S. C. §1732(a).
Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel "all-terrain vehicles," and vehicles capable of such use, such as sport utility vehicles. See 43 CFR §8340.0-5(a) (2003). According to the United States Forest Service's most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. H. Cordell, Outdoor Recreation for 21st Century America 40 (2004). United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. See Tanz, Making Tracks, Making Enemies, N. Y. Times, Jan. 2, 2004, p. F1, col. 5; Discover Today's Motorcycling, Motorcycle Industry Council, Press Release, Feb. 13, 2004, (all Internet materials as visited June 4, 2004, and available in Clerk of Court's case file). The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. See Brief for Natural Resources Defense Council et al. as Amici Curiae 4-7, and studies cited therein. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation.
In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary. In its second amended complaint, SUWA sought declaratory and injunctive relief for BLM's failure to act to protect public lands in Utah from damage caused by ORV use. SUWA made three claims that are relevant here: (1) that BLM had violated its nonimpairment obligation under §1782(a) by allowing degradation in certain WSAs; (2) that BLM had failed to implement provisions in its land use plans relating to ORV use; (3) that BLM had failed to take a "hard look" at whether, pursuant to the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., it should undertake supplemental environmental analyses for areas in which ORV use had increased. SUWA contended that it could sue to remedy these three failures to act pursuant to the APA's provision of a cause of action to "compel agency action unlawfully withheld or unreasonably delayed." 5 U. S. C. §706(1).
The District Court entered a dismissal with respect to the three claims. A divided panel of the Tenth Circuit reversed. 301 F. 3d 1217 (2002). The majority acknowledged that under §706(1), "federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscretionary duty." Id., at 1226. It concluded, however, that BLM's nonimpairment obligation was just such a duty, and therefore BLM could be compelled to comply. Under similar reasoning, it reversed the dismissal with respect to the land use plan claim; and likewise reversed dismissal of the NEPA claim. We granted certiorari. 540 U. S. 980 (2003).
II
All three claims at issue here involve assertions that BLM failed to take action with respect to ORV use that it was required to take. Failures to act are sometimes remediable under the APA, but not always. We begin by considering what limits the APA places upon judicial review of agency inaction.
The APA authorizes suit by "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U. S. C. §702. Where no other statute provides a private right of action, the "agency action" complained of must be "final agency action." §704 (emphasis added). "Agency action" is defined in §551(13) to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." (Emphasis added.) The APA provides relief for a failure to act in §706(1): "The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed."
Sections 702, 704, and 706(1) all insist upon an "agency action," either as the action complained of (in §§702 and 704) or as the action to be compelled (in §706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency--"agency rule, order, license, sanction [or] relief." §551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: "an agency statement of ... future effect designed to implement, interpret, or prescribe law or policy" (rule); "a final disposition ... in a matter other than rule making" (order); a "permit ... or other form of permission" (license); a "prohibition ... or taking [of] other compulsory or restrictive action" (sanction); or a "grant of money, assistance, license, authority," etc., or "recognition of a claim, right, immunity," etc., or "taking of other action on the application or petition of, and beneficial to, a person" (relief). §§551(4), (6), (8), (10), (11).
The terms following those five categories of agency action are not defined in the APA: "or the equivalent or denial thereof, or failure to act." §551(13). But an "equivalent ... thereof" must also be discrete (or it would not be equivalent), and a "denial thereof" must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).
The final term in the definition, "failure to act," is in our view properly understood as a failure to take an agency action--that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of "act" with "agency action" the interpretive canon of ejusdem generis would attribute to the last item ("failure to act") the same characteristic of discreteness shared by all the preceding items. See, e.g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384-385 (2003). A "failure to act" is not the same thing as a "denial." The latter is the agency's act of saying no to a request; the former is simply the omission of an action without formally rejecting a request--for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a "failure to act" is properly understood to be limited, as are the other items in §551(13), to a discrete action.
A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required. This limitation appears in §706(1)'s authorization for courts to "compel agency action unlawfully withheld."1 In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs--principally writs of mandamus under the All Writs Act, now codified at 28 U. S. C. §1651(a). The mandamus remedy was normally limited to enforcement of "a specific, unequivocal command," ICC v. New York, N. H. & H. R. Co., 287 U. S. 178, 204 (1932), the ordering of a " 'precise, definite act ... about which [an official] had no discretion whatever,' " United States ex rel. Dunlap v. Black, 128 U. S. 40, 46 (1888) (quoting Kendall v. United States ex rel. Stokes, 12 Pet. 524, 613 (1838)). See also ICC v. United States ex rel. Humboldt S. S. Co., 224 U. S. 474, 484 (1912). As described in the Attorney General's Manual on the APA, a document whose reasoning we have often found persuasive, see, e.g., Darby v. Cisneros, 509 U. S. 137, 148, n. 10 (1993); Chrysler Corp. v. Brown, 441 U. S. 281, 302, n. 31 (1979); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978), §706(1) empowers a court only to compel an agency "to perform a ministerial or non-discretionary act," or "to take action upon a matter, without directing how it shall act." Attorney General's Manual on the Administrative Procedure Act 108 (1947) (emphasis added). See also L. Jaffe, Judicial Control of Administrative Action 372 (1965); K. Davis, Administrative Law §257, p. 925 (1951).
Thus, a claim under §706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM's land withdrawal review program, couched as unlawful agency "action" that the plaintiffs wished to have "set aside" under §706(2).2 Id., at 879. We concluded that the program was not an "agency action":
"[R]espondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular 'agency action' that causes it harm." Id., at 891 (emphasis in original).
The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency's alleged "failure to revise land use plans in proper fashion" and "failure to consider multiple use," ibid., in terms of "agency action unlawfully withheld" under §706(1), rather than agency action "not in accordance with law" under §706(2).
The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U. S. C. §251(d)(1), which required the Federal Communications Commission "to establish regulations to implement" interconnection requirements "[w]ithin 6 months" of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations.
III
1 A
With these principles in mind, we turn to SUWA's first claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to "continue to manage [WSAs] ... in a manner so as not to impair the suitability of such areas for preservation as wilderness," 43 U. S. C. §1782(c). SUWA relies not only upon §1782(c) but also upon a provision of BLM's Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being "degraded so far, compared with the area's values for other purposes, as to significantly constrain the Congress's prerogative to either designate [it] as wilderness or release it for other uses." App. 65.
Section 1782(c) is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under §706(1), the total exclusion of ORV use.
SUWA argues that §1782 does contain a categorical imperative, namely the command to comply with the nonimpairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General's Manual quoted earlier, that a court can "take action upon a matter, without directing how [the agency] shall act," and upon language in a case cited by the Manual noting that "mandamus will lie ... even though the act required involves the exercise of judgment and discretion." Safeway Stores v. Brown, 138 F. 2d 278, 280 (Emerg. Ct. App. 1943). The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance, unlike the failure to issue a ruling that was discussed in Safeway Stores, lack the specificity requisite for agency action.
The principal purpose of the APA limitations we have discussed--and of the traditional limitations upon mandamus from which they were derived--is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved--which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to "manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance," or to "manage the [New Orleans Jazz National] [H]istorical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz," or to "manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations." 16 U. S. C. §§1333(a), 410bbb-2(a)(1), 460nnn-12(b). The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA.
B
SUWA's second claim is that BLM failed to comply with certain provisions in its land use plans, thus contravening the requirement that "[t]he Secretary shall manage the public lands ... in accordance with the land use plans ... when they are available." 43 U. S. C. §1732(a); see also 43 CFR §1610.5-3(a) (2003) ("All future resource management authorizations and actions ... and subsequent more detailed or specific planning, shall conform to the approved plan"). The relevant count in SUWA's second amended complaint alleged that BLM had violated a variety of commitments in its land use plans, but over the course of the litigation these have been reduced to two, one relating to the 1991 resource management plan for the San Rafael area, and the other to various aspects of the 1990 ORV implementation plan for the Henry Mountains area.
The actions contemplated by the first of these alleged commitments (completion of a route designation plan in the San Rafael area), and by one aspect of the second (creation of "use supervision files" for designated areas in the Henry Mountains area) have already been completed,3 and these claims are therefore moot. There remains the claim, with respect to the Henry Mountains plan, that "in light of damage from ORVs in the Factory Butte area," a sub-area of Henry Mountains open to ORV use, "the [plan] obligated BLM to conduct an intensive ORV monitoring program." Brief for SUWA 7-8. This claim is based upon the plan's statement that the Factory Butte area "will be monitored and closed if warranted." App. 140. SUWA does not contest BLM's assertion in the court below that informal monitoring has taken place for some years, see Brief for Appellee Secretary of Interior et al. in No. 01-4009 (CA10), p. 23, but it demands continuing implementation of a monitoring program. By this it apparently means to insist upon adherence to the plan's general discussion of "Use Supervision and Monitoring" in designated areas, App. 148-149, which (in addition to calling for the use supervision files that have already been created) provides that "[r]esource damage will be documented and recommendations made for corrective action," "[m]onitoring in open areas will focus on determining damage which may necessitate a change in designation," and "emphasis on use supervision will be placed on [limited and closed areas]." Id., at 149. SUWA acknowledges that a monitoring program has recently been commenced. Brief for SUWA 12. In light, however, of the continuing action that existence of a "program" contemplates, and in light of BLM's contention that the program cannot be compelled under §706(1), this claim cannot be considered moot.
The statutory directive that BLM manage "in accordance with" land use plans, and the regulatory requirement that authorizations and actions "conform to" those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U. S. C. §706(2). The claim presently under discussion, however, would have us go further, and conclude that a statement in a plan that BLM "will" take this, that, or the other action, is a binding commitment that can be compelled under §706(1). In our view it is not--at least absent clear indication of binding commitment in the terms of the plan.
FLPMA describes land use plans as tools by which "present and future use is projected." 43 U. S. C. §1701(a)(2) (emphasis added). The implementing regulations make clear that land use plans are a preliminary step in the overall process of managing public lands--
"designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 CFR §1601.0-2 (2003). The statute and regulations confirm that a land use plan is not ordinarily the medium for affirmative decisions that implement the agency's "project[ions]."4 Title 43 U. S. C. §1712(e) provides that "[t]he Secretary may issue management decisions to implement land use plans"--the decisions, that is, are distinct from the plan itself. Picking up the same theme, the regulation defining a land use plan declares that a plan "is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations." 43 CFR §1601.0-5(k) (2003). The BLM's Land Use Planning Handbook specifies that land use plans are normally not used to make site-specific implementation decisions. See Handbook II-2.
Plans also receive a different agency review process from implementation decisions. Appeal to the Department's Board of Land Appeals is available for "a specific action being proposed to implement some portion of a resource management plan or amendment." 43 CFR §1610.5-3(b). However, the Board, which reviews "decisions rendered by Departmental officials relating to ... [t]he use and disposition of public lands and their resources," §4.1(b)(3)(i), does not review the approval of a plan, since it regards a plan as a policy determination, not an implementation decision. See, e.g., Wilderness Society, 109 I. B. L. A. 175, 178 (1989); Wilderness Society, 90 I. B. L. A. 221, 224 (1986); see also Handbook II-2, IV-3. Plans are protested to the BLM director, not appealed.
The San Rafael plan provides an apt illustration of the immense scope of projected activity that a land use plan can embrace. Over 100 pages in length, it presents a comprehensive management framework for 1.5 million acres of BLM-administered land. Twenty categories of resource management are separately discussed, including mineral extraction, wilderness protection, livestock grazing, preservation of cultural resources, and recreation. The plan lays out an ambitious agenda for the preparation of additional, more detailed plans and specific next steps for implementation. Its introduction notes that "[a]n [ORV] implementation plan is scheduled to be prepared within 1 year following approval of the [San Rafael plan]." San Rafael Plan 9. Similarly "scheduled for preparation" are activity plans for certain environmentally sensitive areas, "along with allotment management plans, habitat management plans, a fire management plan, recreation management plans ..., cultural resource management plans for selected sites, watershed activity plans, and the wild and scenic river management plan." Ibid. The projected schedule set forth in the plan shows "[a]nticipated [i]mplementation" of some future plans within one year, others within three years, and still others, such as certain recreation and cultural resource management plans, at a pace of "one study per fiscal year." Id., at 95-102.
Quite unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them. It would be unreasonable to think that either Congress or the agency intended otherwise, since land use plans nationwide would commit the agency to actions far in the future, for which funds have not yet been appropriated. Some plans make explicit that implementation of their programmatic content is subject to budgetary constraints. See Brief for Petitioners 42-43, and n. 18 (quoting from such plans). While the Henry Mountains plan does not contain such a specification, we think it must reasonably be implied. A statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under §706(1).
Of course, an action called for in a plan may be compelled when the plan merely reiterates duties the agency is already obligated to perform, or perhaps when language in the plan itself creates a commitment binding on the agency. But allowing general enforcement of plan terms would lead to pervasive interference with BLM's own ordering of priorities. For example, a judicial decree compelling immediate preparation of all of the detailed plans called for in the San Rafael plan would divert BLM's energies from other projects throughout the country that are in fact more pressing. And while such a decree might please the environmental plaintiffs in the present case, it would ultimately operate to the detriment of sound environmental management. Its predictable consequence would be much vaguer plans from BLM in the future--making coordination with other agencies more difficult, and depriving the public of important information concerning the agency's long-range intentions.
We therefore hold that the Henry Mountains plan's statements to the effect that BLM will conduct "use supervision and monitoring" in designated areas--like other "will do" projections of agency action set forth in land use plans--are not a legally binding commitment enforceable under §706(1). That being so, we find it unnecessary to consider whether the action envisioned by the statements is sufficiently discrete to be amenable to compulsion under the APA.5
IV
Finally, we turn to SUWA's contention that BLM failed to fulfill certain obligations under NEPA. Before addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place. NEPA requires a federal agency to prepare an environmental impact statement (EIS) as part of any "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U. S. C. §4332(2)(C). Often an initial EIS is sufficient, but in certain circumstances an EIS must be supplemented. See Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 370-374 (1989). A regulation of the Council on Environmental Quality requires supplementation where "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 CFR §1502.9(c)(1)(ii) (2003). In Marsh, we interpreted §4332 in light of this regulation to require an agency to take a "hard look" at the new information to assess whether supplementation might be necessary. 490 U. S., at 385; see id., at 378-385.
SUWA argues that evidence of increased ORV use is "significant new circumstances or information" that requires a "hard look." We disagree. As we noted in Marsh, supplementation is necessary only if "there remains 'major Federal actio[n]' to occur," as that term is used in §4332(2)(C). 490 U. S., at 374. In Marsh, that condition was met: the dam construction project that gave rise to environmental review was not yet completed. Here, by contrast, although the "[a]pproval of a [land use plan]" is a "major Federal action" requiring an EIS, 43 CFR §1601.0-6 (2003) (emphasis added), that action is completed when the plan is approved. The land use plan is the "proposed action" contemplated by the regulation. There is no ongoing "major Federal action" that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised, see §§1610.5-5, 5-6).
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 FOOTNOTES
Footnote 1
Of course §706(1) also authorizes courts to "compel agency action ... unreasonably delayed"--but a delay cannot be unreasonable with respect to action that is not required.
Footnote 2
Title 5 U. S. C. §706(2) provides, in relevant part:
"The reviewing court shall-- ...
"(2) hold unlawful and set aside agency action ... found to be--
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... ."
Footnote 3
See U. S. Dept. of Interior, BLM, San Rafael Route Designation Plan (2003), ; 3 App. to Brief for Appellants in No. 01-4009 (CA10), p. 771 (declaration of manager for relevant BLM field office, noting the establishment of monitoring files for the Henry Mountains area); Brief for SUWA 12 (acknowledging completion of these actions).
It is arguable that the complaint sought not merely creation but continuing maintenance of use supervision files, in which case (for the reasons set forth with respect to the ORV monitoring program later in text) that claim would not be moot. If so, what we say below with regard to the merits of the ORV monitoring claim would apply equally to the use supervision file claim.
Footnote 4
The exceptions "are normally limited to those required by regulation, such as designating [ORV] areas, roads, and trails (see 43 CFR 8342)." U. S. Dept. of Interior, BLM, Land Use Planning Handbook II-2 (2000) (hereinafter Handbook). See, e.g., U. S. Dept. of Interior, BLM, San Rafael Final Resource Management Plan 63 (1991) (hereinafter San Rafael Plan) (available at
OTHERS/SRARMP-ROD%20MAY%201991.pdf).
Footnote 5
We express no view as to whether a court could, under §706(1), enforce a duty to monitor ORV use imposed by a BLM regulation, see 43 CFR §8342.3 (2003). That question is not before us.
7
RAPANOS et ux., et al. v. UNITED STATES
1 certiorari to the united states court of appeals for the sixth circuit
No. 04-1034. Argued February 21, 2006--Decided June 19, 2006*
As relevant here, the Clean Water Act (CWA or Act) makes it unlawful to discharge dredged or fill material into "navigable waters" without a permit, 33 U. S. C. §§1311(a), 1342(a), and defines "navigable waters" as "the waters of the United States, including the territorial seas," §1362(7). The Army Corps of Engineers (Corps), which issues permits for the discharge of dredged or fill material into navigable waters, interprets "the waters of the United States" expansively to include not only traditional navigable waters, 33 CFR §328.3(a)(1), but also other defined waters, §328.3(a)(2), (3); "[t]ributaries" of such waters, §328.3(a)(5); and wetlands "adjacent" to such waters and tributaries, §328.3(a)(7). "[A]djacent" wetlands include those "bordering, contiguous [to], or neighboring" waters of the United States even when they are "separated from [such] waters ... by man-made dikes ... and the like." §328.3(c).
These cases involve four Michigan wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters. In No. 04-1034, the United States brought civil enforcement proceedings against the Rapanos petitioners, who had backfilled three of the areas without a permit. The District Court found federal jurisdiction over the wetlands because they were adjacent to "waters of the United States" and held petitioners liable for CWA violations. Affirming, the Sixth Circuit found federal jurisdiction based on the sites' hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. In No. 04-1384, the Carabell petitioners were denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm. The Carabells sued, but the District Court found federal jurisdiction over the site. Affirming, the Sixth Circuit held that the wetland was adjacent to navigable waters.
Held: The judgments are vacated, and the cases are remanded.
No. 04-1034, 376 F. 3d 629, and No. 04-1384, 391 F. 3d 704, vacated and remanded.
Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded:
1. The phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams," "oceans, rivers, [and] lakes," Webster's New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of that phrase is thus not "based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 12-21.
(a) While the meaning of "navigable waters" in the CWA is broader than the traditional definition found in The Daniel Ball, 10 Wall. 557, see Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (SWANCC); United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 133, the CWA authorizes federal jurisdiction only over "waters." The use of the definite article "the" and the plural number "waters" show plainly that §1362(7) does not refer to water in general, but more narrowly to water "[a]s found in streams," "oceans, rivers, [and] lakes," Webster's New International Dictionary 2882 (2d ed.). Those terms all connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Pp. 12-15.
(b) The Act's use of the traditional phrase "navigable waters" further confirms that the CWA confers jurisdiction only over relatively permanent bodies of water. Traditionally, such "waters" included only discrete bodies of water, and the term still carries some of its original substance, SWANCC, supra, at 172. This Court's subsequent interpretation of "the waters of the United States" in the CWA likewise confirms this limitation. See, e.g., Riverside Bayview, supra, at 131. And the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from "navigable waters," including them in the definition of " 'point sources,' " 33 U. S. C. §1362(14). Moreover, only the foregoing definition of "waters" is consistent with CWA's stated policy "to recognize, preserve, and protect the primary responsibilities and rights of the States ... to plan the development and use ... of land and water resources ... ." §1251(b). In addition, "the waters of the United States" hardly qualifies as the clear and manifest statement from Congress needed to authorize intrusion into such an area of traditional state authority as land-use regulation; and to authorize federal action that stretches the limits of Congress's commerce power. See SWANCC, supra, at 173. Pp. 15-21.
2. A wetland may not be considered "adjacent to" remote "waters of the United States" based on a mere hydrologic connection. Riverside Bayview rested on an inherent ambiguity in defining where the "water" ends and its abutting ("adjacent") wetlands begin, permitting the Corps to rely on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds are not "waters of the United States" in their own right, see SWANCC, supra, at 167, 171, and present no boundary-drawing problem justifying the invocation of such ecological factors. Thus, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between the two, are "adjacent" to such waters and covered by the Act. Establishing coverage of the Rapanos and Carabell sites requires finding that the adjacent channel contains a relatively permanent "wate[r] of the United States," and that each wetland has a continuous surface connection to that water, making it difficult to determine where the water ends and the wetland begins. Pp. 21-24.
3. Because the Sixth Circuit applied an incorrect standard to determine whether the wetlands at issue are covered "waters," and because of the paucity of the record, the cases are remanded for further proceedings. P. 39.
Justice Kennedy concluded that the Sixth Circuit correctly recognized that a water or wetland constitutes "navigable waters" under the Act if it possesses a "significant nexus" to waters that are navigable in fact or that could reasonably be so made, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (SWANCC), but did not consider all the factors necessary to determine that the lands in question had, or did not have, the requisite nexus. United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, and SWANCC establish the framework for the inquiry here. The nexus required must be assessed in terms of the Act's goals and purposes. Congress enacted the law to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a), and it pursued that objective by restricting dumping and filling in "waters of the United States," §§1311(a), 1362(12). The rationale for the Act's wetlands regulation, as the Corps has recognized, is that wetlands can perform critical functions related to the integrity of other waters--such as pollutant trapping, flood control, and runoff storage. 33 C. F. R. §320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters," if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense. When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term "navigable waters." Because the Corps' theory of jurisdiction in these cases--adjacency to tributaries, however remote and insubstantial--goes beyond the Riverside Bayview holding, its assertion of jurisdiction cannot rest on that case. The breadth of the Corps' existing standard for tributaries--which seems to leave room for regulating drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes toward it--precludes that standard's adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Absent more specific regulations, the Corps must establish a significant nexus on a case-by-case basis when seeking to regulate wetlands based on adjacency to nonnavigable tributaries, in order to avoid unreasonable applications of the Act. In the instant cases the record contains evidence pointing to a possible significant nexus, but neither the agency nor the reviewing courts considered the issue in these terms. Thus, the cases should be remanded for further proceedings. Pp. 1-30.
Scalia, J., announced the judgment of the Court, and delivered an opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.
JOHN A. RAPANOS, et ux., et al., PETITIONERS
04-1034 v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04-1384 v.
UNITED STATES ARMY CORPS OF ENGINEERS et al.
2 on writs of certiorari to the united states court of
appeals for the sixth circuit
[June 19, 2006]
Justice Scalia announced the judgment of the Court, and delivered an opinion, in which The Chief Justice, Justice Thomas, and Justice Alito join.
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. 339 F. 3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were "waters of the United States," 33 U. S. C. §1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.
The burden of federal regulation on those who would deposit fill material in locations denominated "waters of the United States" is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as "economics," "aesthetics," "recreation," and "in general, the needs and welfare of the people," 33 CFR §320.4(a) (2004).1 The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915--not counting costs of mitigation or design changes. Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). "[O]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits." Id., at 81. These costs cannot be avoided, because the Clean Water Act "impose[s] criminal liability," as well as steep civil fines, "on a broad range of ordinary industrial and commercial activities." Hanousek v. United States, 528 U. S. 1102, 1103 (2000) (Thomas, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F. 3d 256, 260 (CA6 2000).
The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act--without any change in the governing statute--during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States--including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a "water of the United States."
I
Congress passed the Clean Water Act (CWA or Act) in 1972. The Act's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 86 Stat. 816, 33 U. S. C. §1251(a). The Act also states that "[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter." §1251(b).
One of the statute's principal provisions is 33 U. S. C. §1311(a), which provides that "the discharge of any pollutant by any person shall be unlawful." "The discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source," §1362(12), and "pollutant" is defined broadly to include not only traditional contaminants but also solids such as "dredged spoil, . . . rock, sand, [and] cellar dirt," §1362(6). And, most relevant here, the CWA defines "navigable waters" as "the waters of the United States, including the territorial seas." §1362(7).
The Act also provides certain exceptions to its prohibition of "the discharge of any pollutant by any person." §1311(a). Section 1342(a) authorizes the Administrator of the EPA to "issue a permit for the discharge of any pollutant, ... notwithstanding section 1311(a) of this title." Section 1344 authorizes the Secretary of the Army, acting through the Corps, to "issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites." §1344(a), (d). It is the discharge of "dredged or fill material"--which, unlike traditional water pollutants, are solids that do not readily wash downstream--that we consider today.
For a century prior to the CWA, we had interpreted the phrase "navigable waters of the United States" in the Act's predecessor statutes to refer to interstate waters that are "navigable in fact" or readily susceptible of being rendered so. The Daniel Ball, 10 Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act's term "navigable waters." See 39 Fed. Reg. 12119, codified at 33 CFR §209.120(d)(1) (1974); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (2001) (SWANCC). After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975), the Corps adopted a far broader definition. See 40 Fed. Reg. 31324-31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps' new regulations deliberately sought to extend the definition of "the waters of the United States" to the outer limits of Congress's commerce power. See id., at 37144, n. 2.
The Corps' current regulations interpret "the waters of the United States" to include, in addition to traditional interstate navigable waters, 33 CFR §328.3(a)(1) (2004), "[a]ll interstate waters including interstate wetlands," §328.3(a)(2); "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce," §328.3(a)(3); "[t]ributaries of [such] waters," §328.3(a)(5); and "[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands)," §328.3(a)(7). The regulation defines "adjacent" wetlands as those "bordering, contiguous [to], or neighboring" waters of the United States. §328.3(c). It specifically provides that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.' " Ibid.
We first addressed the proper interpretation of 33 U. S. C. §1362(7)'s phrase "the waters of the United States" in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). That case concerned a wetland that "was adjacent to a body of navigable water," because "the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent's property to ... a navigable waterway." Id., at 131; see also 33 CFR §328.3(b) (2004). Noting that "the transition from water to solid ground is not necessarily or even typically an abrupt one," and that "the Corps must necessarily choose some point at which water ends and land begins," 474 U. S., at 132, we upheld the Corps' interpretation of "the waters of the United States" to include wetlands that "actually abut[ted] on" traditional navigable waters. Id., at 135.
Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to "clarify" the reach of its jurisdiction, the Corps announced the so-called "Migratory Bird Rule," which purported to extend its jurisdiction to any intrastate waters "[w]hich are or would be used as habitat" by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163-164. In addition, the Corps interpreted its own regulations to include "ephemeral streams" and "drainage ditches" as "tributaries" that are part of the "waters of the United States," see 33 CFR §328.3(a)(5), provided that they have a perceptible "ordinary high water mark" as defined in §328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended "the waters of the United States" to virtually any land feature over which rainwater or drainage passes and leaves a visible mark--even if only "the presence of litter and debris." 33 CFR §328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Juris-
diction, GAO-04-297, pp. 20-22 (Feb. 2004) (hereinafter GAO Report), (all Internet materials as visited June 9, 2006, and available in Clerk of Court's case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of "tributaries" to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340-1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over "centuries," Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985).
In SWANCC, we considered the application of the Corps' "Migratory Bird Rule" to "an abandoned sand and gravel pit in northern Illinois." 531 U. S., at 162. Observing that "[i]t was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview," id., at 167 (emphasis added), we held that Riverside Bayview did not establish "that the jurisdiction of the Corps extends to ponds that are not adjacent to open water." 531 U. S., at 168 (emphasis deleted). On the contrary, we held that "nonnavigable, isolated, intrastate waters," id., at 171--which, unlike the wetlands at issue in Riverside Bayview, did not "actually abu[t] on a navigable waterway," 531 U. S., at 167--were not included as "waters of the United States."
Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under §1344(a). The Corps provided notice of a proposed rulemaking in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they "should continue to assert jurisdiction over traditional navigable waters ... and, generally speaking, their tributary systems (and adjacent wetlands)." 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters " 'neighboring' " traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR §328.3(c) (2003)).
Even after SWANCC, the lower courts have continued to uphold the Corps' sweeping assertions of jurisdiction over ephemeral channels and drains as "tributaries." For example, courts have held that jurisdictional "tributaries" include the "intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under I-64)," Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a "roadside ditch" whose water took "a winding, thirty-two-mile path to the Chesapeake Bay," United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954-955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the "washes and arroyos" of an "arid development site," located in the middle of the desert, through which "water courses . . . during periods of heavy rain," Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005).2
These judicial constructions of "tributaries" are not outliers. Rather, they reflect the breadth of the Corps' determinations in the field. The Corps' enforcement practices vary somewhat from district to district because "the definitions used to make jurisdictional determinations" are deliberately left "vague." GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as "waters of the United States," such typically dry land features as "arroyos, coulees, and washes," as well as other "channels that might have little water flow in a given year." Id., at 20-21. They have also applied that definition to such manmade, intermittently flowing features as "drain tiles, storm drains systems, and culverts." Id., at 24 (footnote omitted).
In addition to "tributaries," the Corps and the lower courts have also continued to define "adjacent" wetlands broadly after SWANCC. For example, some of the Corps' district offices have concluded that wetlands are "adjacent" to covered waters if they are hydrologically connected "through directional sheet flow during storm events," GAO Report 18, or if they lie within the "100-year floodplain" of a body of water--that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland "adjacent" and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of "adjacency" in the courts, even after SWANCC's excision of "isolated" waters and wetlands from the Act's coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a "significant nexus" to covered waters because, inter alia, they lay "within the 100 year floodplain of tidal waters." Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with "[t]he majority of courts," that "while a hydrological connection between the non-navigable and navigable waters is required, there is no 'direct abutment' requirement" under SWANCC for " 'adjacency.' " 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a "significant nexus." One court distinguished SWANCC on the ground that "a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water"--whereas, in the case before it, "water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies," and "[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river]." United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877-878 (ND Ind. 2002).
II
In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute "waters of the United States" within the meaning of the Act. Petitioners in No. 04-1034, the Rapanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the "Salzburg site," the "Hines Road site," and the "Pine River site." The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. See Brief for United States in No. 04-1034, p. 11; 339 F. 3d, at 449. The wetlands at the Hines Road site are connected to something called the "Rose Drain," which has a surface connection to the Tittabawassee River. App. to Pet. for Cert. in No. 04-1034, pp. A23, B20. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. Id., at A23-A24, B26. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water.
The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were "within federal jurisdiction" because they were "adjacent to other waters of the United States," and held petitioners liable for violations of the CWA at those sites. Id., at B32-B35. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because "there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters." 376 F. 3d, at 643.
Petitioners in No. 04-1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. See App. to Pet. for Cert. in No. 04-1384, pp. 2a-3a.
After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland "is adjacent to neighboring tributaries of navigable waters and has a significant nexus to 'waters of the United States.' " Id., at 49a. Again the Sixth Circuit affirmed, holding that the Carabell wetland was "adjacent" to navigable waters. 391 F. 3d 704, 708 (2004) (Carabell).
We granted certiorari and consolidated the cases, 546 U. S. ___ (2005), to decide whether these wetlands constitute "waters of the United States" under the Act, and if so, whether the Act is constitutional.
III
The Rapanos petitioners contend that the terms "navigable waters" and "waters of the United States" in the Act must be limited to the traditional definition of The Daniel Ball, which required that the "waters" be navigable in fact, or susceptible of being rendered so. See 10 Wall., at 563. But this definition cannot be applied wholesale to the CWA. The Act uses the phrase "navigable waters" as a defined term, and the definition is simply "the waters of the United States." 33 U. S. C. §1362(7). Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over "navigable waters ... other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce ... including wetlands adjacent thereto." §1344(g)(1) (emphasis added). This provision shows that the Act's term "navigable waters" includes something more than traditional navigable waters. We have twice stated that the meaning of "navigable waters" in the Act is broader than the traditional understanding of that term, SWANCC, 531 U. S., at 167; Riverside Bayview, 474 U. S., at 133.3 We have also emphasized, however, that the qualifier "navigable" is not devoid of significance, SWANCC, supra, at 172.
We need not decide the precise extent to which the qualifiers "navigable" and "of the United States" restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over "waters." 33 U. S. C. §1362(7). The only natural definition of the term "waters," our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court's canons of construction all confirm that "the waters of the United States" in §1362(7) cannot bear the expansive meaning that the Corps would give it.
The Corps' expansive approach might be arguable if the CSA defined "navigable waters" as "water of the United States." But "the waters of the United States" is something else. The use of the definite article ("the") and the plural number ("waters") show plainly that §1362(7) does not refer to water in general. In this form, "the waters" refers more narrowly to water "[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes," or "the flowing or moving masses, as of waves or floods, making up such streams or bodies." Webster's New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster's Second).4 On this definition, "the waters of the United States" include only relatively permanent, standing or flowing bodies of water.5 The definition refers to water as found in "streams," "oceans," "rivers," "lakes," and "bodies" of water "forming geographical features." Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition's terms, namely "streams," connotes a continuous flow of water in a permanent channel--especially when used in company with other terms such as "rivers," "lakes," and "oceans."6 None of these terms encompasses transitory puddles or ephemeral flows of water.
The restriction of "the waters of the United States" to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to "ephemeral streams," "wet meadows," storm sewers and culverts, "directional sheet flow during storm events," drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term "waters of the United States" beyond parody. The plain language of the statute simply does not authorize this "Land Is Waters" approach to federal jurisdiction.
In addition, the Act's use of the traditional phrase "navigable waters" (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (Stevens, J., dissenting). On the traditional understanding, "navigable waters" included only discrete bodies of water. For example, in The Daniel Ball, we used the terms "waters" and "rivers" interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the "navigable waters" as "waterways." 311 U. S., at 407-409. Plainly, because such "waters" had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term "navigable waters"--even though defined as "the waters of the United States"--carries some of its original substance: "[I]t is one thing to give a word limited effect and quite another to give it no effect whatever." 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water.
Our subsequent interpretation of the phrase "the waters of the United States" in the CWA likewise confirms this limitation of its scope. In Riverside Bayview, we stated that the phrase in the Act referred primarily to "rivers, streams, and other hydrographic features more conventionally identifiable as 'waters' " than the wetlands adjacent to such features. 474 U. S., at 131 (emphasis added). We thus echoed the dictionary definition of "waters" as referring to "streams and bodies forming geographical features such as oceans, rivers, [and] lakes." Webster's Second 2882 (emphasis added). Though we upheld in that case the inclusion of wetlands abutting such a "hydrographic featur[e]"--principally due to the difficulty of drawing any clear boundary between the two, see 474 U. S., at 132; Part IV, infra--nowhere did we suggest that "the waters of the United States" should be expanded to include, in their own right, entities other than "hydrographic features more conventionally identifiable as 'waters.' " Likewise, in both Riverside Bayview and SWANCC, we repeatedly described the "navigable waters" covered by the Act as "open water" and "open waters." See Riverside Bayview, supra, at 132, and n. 8, 134; SWANCC, supra, at 167, 172. Under no rational interpretation are typically dry channels described as "open waters."
Most significant of all, the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from "navigable waters," by including them in the definition of " 'point source.' " The Act defines " 'point source' " as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U. S. C. §1362(14). It also defines " 'discharge of a pollutant' " as "any addition of any pollutant to navigable waters from any point source." §1362(12)(A) (emphases added). The definitions thus conceive of "point sources" and "navigable waters" as separate and distinct categories. The definition of "discharge" would make little sense if the two categories were significantly overlapping. The separate classification of "ditch[es], channel[s], and conduit[s]"--which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow--shows that these are, by and large, not "waters of the United States."7
Moreover, only the foregoing definition of "waters" is consistent with the CWA's stated "policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources ... ." §1251(b). This statement of policy was included in the Act as enacted in 1972, see 86 Stat. 816, prior to the addition of the optional state administration program in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to something beyond the subsequently added state administration program of 33 U. S. C. §1344(g)-(l). But the expansive theory advanced by the Corps, rather than "preserv[ing] the primary rights and responsibilities of the States," would have brought virtually all "plan[ning of] the development and use . . . of land and water resources" by the States under federal control. It is therefore an unlikely reading of the phrase "the waters of the United States."8
Even if the phrase "the waters of the United States" were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps' interpretation of the statute is impermissible. As we noted in SWANCC, the Government's expansive interpretation would "result in a significant impingement of the States' traditional and primary power over land and water use." 531 U. S., at 174. Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power. See FERC v. Mississippi, 456 U. S. 742, 768, n. 30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994). The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land--an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. See 33 CFR §320.4(a)(1) (2004). We ordinarily expect a "clear and manifest" statement from Congress to authorize an unprecedented intrusion into traditional state authority. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994). The phrase "the waters of the United States" hardly qualifies.
Likewise, just as we noted in SWANCC, the Corps' interpretation stretches the outer limits of Congress's commerce power and raises difficult questions about the ultimate scope of that power. See 531 U. S., at 173. (In developing the current regulations, the Corps consciously sought to extend its authority to the farthest reaches of the commerce power. See 42 Fed. Reg. 37127 (1977).) Even if the term "the waters of the United States" were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).9
In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] ... oceans, rivers, [and] lakes." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).
IV
In Carabell, the Sixth Circuit held that the nearby ditch constituted a "tributary" and thus a "water of the United States" under 33 CFR §328.3(a)(5) (2004). See 391 F. 3d, at 708-709. Likewise in Rapanos, the Sixth Circuit held that the nearby ditches were "tributaries" under §328(a)(5). 376 F. 3d, at 643. But Rapanos II also stated that, even if the ditches were not "waters of the United States," the wetlands were "adjacent" to remote traditional navigable waters in virtue of the wetlands' "hydrological connection" to them. See id., at 639-640. This statement reflects the practice of the Corps' district offices, which may "assert jurisdiction over a wetland without regulating the ditch connecting it to a water of the United States." GAO Report 23. We therefore address in this Part whether a wetland may be considered "adjacent to" remote "waters of the United States," because of a mere hydrologic connection to them.
In Riverside Bayview, we noted the textual difficulty in including "wetlands" as a subset of "waters": "On a purely linguistic level, it may appear unreasonable to classify 'lands,' wet or otherwise, as 'waters.' " 474 U. S., at 132. We acknowledged, however, that there was an inherent ambiguity in drawing the boundaries of any "waters":
"[T]he Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs--in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of 'waters' is far from obvious." Ibid.
Because of this inherent ambiguity, we deferred to the agency's inclusion of wetlands "actually abut[ting]" traditional navigable waters: "Faced with such a problem of defining the bounds of its regulatory authority," we held, the agency could reasonably conclude that a wetland that "adjoin[ed]" waters of the United States is itself a part of those waters. Id., at 132, 135, and n. 9. The difficulty of delineating the boundary between water and land was central to our reasoning in the case: "In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act." Id., at 134 (emphasis added).10
When we characterized the holding of Riverside Bayview in SWANCC, we referred to the close connection between waters and the wetlands that they gradually blend into: "It was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA in Riverside Bayview Homes." 531 U. S., at 167 (emphasis added). In particular, SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside Bayview--and upon which the dissent repeatedly relies today, see post, at 10-11, 12, 13-14, 15, 18-19, 21-22, 24-25--provided an independent basis for including entities like "wetlands" (or "ephemeral streams") within the phrase "the waters of the United States." SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps' jurisdiction. It thus confirmed that Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting ("adjacent") wetlands begin, permitting the Corps' reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not "waters of the United States" in their own right, see 531 U. S., at 167, 171, and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such.
Therefore, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to "waters of the United States" do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a "significant nexus" in SWANCC. 531 U. S., at 167. Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: First, that the adjacent channel contains a "wate[r] of the United States," (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.
V
Respondents and their amici urge that such restrictions on the scope of "navigable waters" will frustrate enforcement against traditional water polluters under 33 U. S. C. §§1311 and 1342. Because the same definition of "navigable waters" applies to the entire statute, respondents contend that water polluters will be able to evade the permitting requirement of §1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters. See Tr. of Oral Arg. 74-75.
That is not so. Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of §1342, inasmuch as lower courts applying §1342 have not characterized intermittent channels as "waters of the United States." The Act does not forbid the "addition of any pollutant directly to navigable waters from any point source," but rather the "addition of any pollutant to navigable waters." §1362(12)(A) (emphasis added); §1311(a). Thus, from the time of the CWA's enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates §1311(a), even if the pollutants discharged from a point source do not emit "directly into" covered waters, but pass "through conveyances" in between. United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 946-947 (WD Tenn. 1976) (a municipal sewer system separated the "point source" and covered navigable waters). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F. 3d 1133, 1137, 1141 (CA10 2005) (2.5 miles of tunnel separated the "point source" and "navigable waters").
In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute "point sources" under the Act. The definition of "point source" includes "any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U. S. C. §1362(14). We have held that the Act "makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to 'navigable waters.' " South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 105 (2004). Cases holding the intervening channel to be a point source include United States v. Ortiz, 427 F. 3d 1278, 1281 (CA10 2005) (a storm drain that carried flushed chemicals from a toilet to the Colorado River was a "point source"), and Dague v. Burlington, 935 F. 2d 1343, 1354-1355 (CA2 1991) (a culvert connecting two bodies of navigable water was a "point source"), rev'd on other grounds, 505 U. S. 557 (1992). Some courts have even adopted both the "indirect discharge" rationale and the "point source" rationale in the alternative, applied to the same facts. See, e.g., Concerned Area Residents for Environment v. Southview Farm, 34 F. 3d 114, 118-119 (CA2 1994). On either view, however, the lower courts have seen no need to classify the intervening conduits as "waters of the United States."
In contrast to the pollutants normally covered by the permitting requirement of §1342(a), "dredged or fill material," which is typically deposited for the sole purpose of staying put, does not normally wash downstream,11 and thus does not normally constitute an "addition ... to navigable waters" when deposited in upstream isolated wetlands. §§1344(a), 1362(12). The Act recognizes this distinction by providing a separate permitting program for such discharges in §1344(a). It does not appear, therefore, that the interpretation we adopt today significantly reduces the scope of §1342 of the Act.
Respondents also urge that the narrower interpretation of "waters" will impose a more difficult burden of proof in enforcement proceedings under §§1311(a) and 1342(a), by requiring the agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional "waters." See Tr. of Oral Arg. 57. But, as noted above, the lower courts do not generally rely on characterization of intervening channels as "waters of the United States" in applying §1311 to the traditional pollutants subject to §1342. Moreover, the proof of downstream flow of pollutants required under §1342 appears substantially similar, if not identical, to the proof of a hydrologic connection that would be required, on the Sixth Circuit's theory of jurisdiction, to prove that an upstream channel or wetland is a "wate[r] of the United States." See Rapanos II, 376 F. 3d, at 639. Compare, e.g., App. to Pet. for Cert. in No. 04-1034, at B11, B20, B26 (testimony of hydrologic connections based on observation of surface water connections), with Southview Farm, supra, at 118-121 (testimony of discharges based on observation of the flow of polluted water). In either case, the agency must prove that the contaminant-laden waters ultimately reach covered waters.
Finally, respondents and many amici admonish that narrowing the definition of "the waters of the United States" will hamper federal efforts to preserve the Nation's wetlands. It is not clear that the state and local conservation efforts that the CWA explicitly calls for, see 33 U. S. C. §1251(b), are in any way inadequate for the goal of preservation. In any event, a Comprehensive National Wetlands Protection Act is not before us, and the "wis[dom]" of such a statute, post, at 19 (opinion of Stevens, J.), is beyond our ken. What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only "the waters of the United States."
VI
In an opinion long on praise of environmental protection and notably short on analysis of the statutory text and structure, the dissent would hold that "the waters of the United States" include any wetlands "adjacent" (no matter how broadly defined) to "tributaries" (again, no matter how broadly defined) of traditional navigable waters. For legal support of its policy-laden conclusion, the dissent relies exclusively on two sources: "[o]ur unanimous opinion in Riverside Bayview," post, at 6; and "Congress' deliberate acquiescence in the Corps' regulations in 1977," post, at 11. Each of these is demonstrably inadequate to support the apparently limitless scope that the dissent would permit the Corps to give to the Act.
A
The dissent's assertion that Riverside Bayview "squarely controls these cases," post, at 6, is wholly implausible. First, Riverside Bayview could not possibly support the dissent's acceptance of the Corps' inclusion of dry beds as "tributaries," post, at 19, because the definition of tributaries was not at issue in that case. Riverside Bayview addressed only the Act's inclusion of wetlands abutting navigable-in-fact waters, and said nothing at all about what non-navigable tributaries the Act might also cover.
Riverside Bayview likewise provides no support for the dissent's complacent acceptance of the Corps' definition of "adjacent," which (as noted above) has been extended beyond reason to include, inter alia, the 100-year floodplain of covered waters. See supra, at 9. The dissent notes that Riverside Bayview quoted without comment the Corps' description of "adjacent" wetlands as those "that form the border of or are in reasonable proximity to other waters of the United States." Post, at 8 (citing 474 U. S., at 134 (quoting 42 Fed. Reg. 37128)). As we have already discussed, this quotation provides no support for the inclusion of physically unconnected wetlands as covered "waters." See supra, at 22-23, n. 10. The dissent relies principally on a footnote in Riverside Bayview recognizing that " 'not every adjacent wetland is of great importance to the environment of adjoining bodies of water,' " and that all " 'adjacent' " wetlands are nevertheless covered by the Act, post, at 8 (quoting 474 U. S., at 135, n. 9). Of course, this footnote says nothing to support the dissent's broad definition of "adjacent"--quite the contrary, the quoted sentence uses "adjacent" and "adjoining" interchangeably, and the footnote qualifies a sentence holding that the wetland was covered "[b]ecause" it "actually abut[ted] on a navigable waterway." Id., at 135 (emphasis added). Moreover, that footnote's assertion that the Act may be interpreted to include even those adjoining wetlands that are "lacking in importance to the aquatic environment," id., at 135, n. 9, confirms that the scope of ambiguity of "the waters of the United States" is determined by a wetland's physical connection to covered waters, not its ecological relationship thereto.
The dissent reasons (1) that Riverside Bayview held that "the waters of the United States" include "adjacent wetlands," and (2) we must defer to the Corps' interpretation of the ambiguous word "adjacent." Post, at 20-21. But this is mere legerdemain. The phrase "adjacent wetlands" is not part of the statutory definition that the Corps is authorized to interpret, which refers only to "the waters of the United States," 33 U. S. C. §1362(7).12 In expounding the term "adjacent" as used in Riverside Bayview, we are explaining our own prior use of that word to interpret the definitional phrase "the waters of the United States." However ambiguous the term may be in the abstract, as we have explained earlier, "adjacent" as used in Riverside Bayview is not ambiguous between "physically abutting" and merely "nearby." See supra, at 21-23.
The dissent would distinguish SWANCC on the ground that it "had nothing to say about wetlands," post, at 9--i.e., it concerned "isolated ponds" rather than isolated wetlands. This is the ultimate distinction without a difference. If isolated "permanent and seasonal ponds of varying size ... and depth," 531 U. S., at 163--which, after all, might at least be described as "waters" in their own right--did not constitute "waters of the United States," a fortiori, isolated swampy lands do not constitute "waters of the United States." See also 474 U. S., at 132. As the author of today's dissent has written, "[i]f, as I believe, actually navigable waters lie at the very heart of Congress' commerce power and 'isolated,' nonnavigable waters lie closer to ... the margin, 'isolated wetlands,' which are themselves only marginally 'waters,' are the most marginal category of 'waters of the United States' potentially covered by the statute." 531 U. S., at 187, n. 13 (Stevens, J., dissenting).
The only other ground that the dissent offers to distinguish SWANCC is that, unlike the ponds in SWANCC, the wetlands in these cases are "adjacent to navigable bodies of water and their tributaries"--where "adjacent" may be interpreted who-knows-how broadly. It is not clear why roughly defined physical proximity should make such a difference--without actual abutment, it raises no boundary-drawing ambiguity, and it is undoubtedly a poor proxy for ecological significance. In fact, though the dissent is careful to restrict its discussion to wetlands "adjacent" to tributaries, its reasons for including those wetlands are strictly ecological--such wetlands would be included because they "serve ... important water quality roles," post, at 11, and "play important roles in the watershed," post, at 18-19. This reasoning would swiftly overwhelm SWANCC altogether; after all, the ponds at issue in SWANCC could, no less than the wetlands in these cases, "offer 'nesting, spawning, rearing and resting sites for aquatic or land species,' " and " 'serve as valuable storage areas for storm and flood waters,' " post, at 9-10. The dissent's exclusive focus on ecological factors, combined with its total deference to the Corps' ecological judgments, would permit the Corps to regulate the entire country as "waters of the United States."
B
Absent a plausible ground in our case law for its sweeping position, the dissent relies heavily on "Congress' deliberate acquiescence in the Corps' regulations in 1977," post, at 11--noting that "[w]e found [this acquiescence] significant in Riverside Bayview," and even "acknowledged in SWANCC" that we had done so, post, at 12. SWANCC "acknowledged" that Riverside Bayview had relied on congressional acquiescence only to criticize that reliance. It reasserted in no uncertain terms our oft-expressed skepticism towards reading the tea leaves of congressional inaction:
"Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care. Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute. ... The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing [§1344(a)] is also considerably attenuated. Because subsequent history is less illuminating than the contemporaneous evidence, respondents face a difficult task in overcoming the plain text and import of [§1344(a)]." 531 U. S., at 169 (citations, internal quotation marks, and footnote omitted).
Congress takes no governmental action except by legislation. What the dissent refers to as "Congress' deliberate acquiescence" should more appropriately be called Congress's failure to express any opinion. We have no idea whether the Members' failure to act in 1977 was attributable to their belief that the Corps' regulations were correct, or rather to their belief that the courts would eliminate any excesses, or indeed simply to their unwillingness to confront the environmental lobby. To be sure, we have sometimes relied on congressional acquiescence when there is evidence that Congress considered and rejected the "precise issue" presented before the Court, Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983) (emphasis added). However, "[a]bsent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation." SWANCC, supra, at 169, n. 5 (emphasis added).
The dissent falls far short of producing "overwhelming evidence" that Congress considered and failed to act upon the "precise issue" before the Court today--namely, what constitutes an "adjacent" wetland covered by the Act. Citing Riverside Bayview's account of the 1977 debates, the dissent claims nothing more than that Congress "conducted extensive debates about the Corps' regulatory jurisdiction over wetlands [and] rejected efforts to limit that jurisdiction ... ." Post, at 11. In fact, even that vague description goes too far. As recounted in Riverside Bayview, the 1977 debates concerned a proposal to "limi[t] the Corps' authority under [§1344] to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters)," 474 U. S., at 136. In rejecting this proposal, Congress merely failed to enact a limitation of "waters" to include only navigable-in-fact waters--an interpretation we affirmatively reject today, see supra, at 12--and a definition of wetlands based on "periodi[c] inundat[ion]" that appears almost nowhere in the briefs or opinions of these cases.13 No plausible interpretation of this legislative inaction can construe it as an implied endorsement of every jot and tittle of the Corps' 1977 regulations. In fact, Riverside Bayview itself relied on this legislative inaction only as "at least some evidence of the reasonableness" of the agency's inclusion of adjacent wetlands under the Act, 474 U. S., at 137, and for the observation that "even those who would have restricted the reach of the Corps' jurisdiction" would not have excised adjacent wetlands, ibid. Both of these conclusions are perfectly consistent with our interpretation, and neither illuminates the disputed question of what constitutes an "adjacent" wetland.
C
In a curious appeal to entrenched Executive error, the dissent contends that "the appropriateness of the Corps' 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary." Post, at 14; see also post, at 2, 22. Surely this is a novel principle of administrative law--a sort of 30-year adverse possession that insulates disregard of statutory text from judicial review. It deservedly has no precedent in our jurisprudence. We did not invoke such a principle in SWANCC, when we invalidated one aspect of the Corps' implementation.
The dissent contends that "[b]ecause there is ambiguity in the phrase 'waters of the United States' and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps' approach should command our deference." Post, at 19. Two defects in a single sentence: "[W]aters of the United States" is in some respects ambiguous. The scope of that ambiguity, however, does not conceivably extend to whether storm drains and dry ditches are "waters," and hence does not support the Corps' interpretation. And as for advancing "the purpose of the Act": We have often criticized that last resort of extravagant interpretation, noting that no law pursues its purpose at all costs, and that the textual limitations upon a law's scope are no less a part of its "purpose" than its substantive authorizations. See, e.g., Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 135-136 (1995).
Finally, we could not agree more with the dissent's statement, post, at 14, that "[w]hether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges." Neither, however, should it be answered by appointed officers of the Corps of Engineers in contradiction of congressional direction. It is the dissent's opinion, and not ours, which appeals not to a reasonable interpretation of enacted text, but to the great environmental benefits that a patently unreasonable interpretation can achieve. We have begun our discussion by mentioning, to be sure, the high costs imposed by that interpretation--but they are in no way the basis for our decision, which rests, plainly and simply, upon the limited meaning that can be borne by the phrase "waters of the United States."
VII
Justice Kennedy's opinion concludes that our reading of the Act "is inconsistent with its text, structure, and purpose." Post, at 19. His own opinion, however, leaves the Act's "text" and "structure" virtually unaddressed, and rests its case upon an interpretation of the phrase "significant nexus," ibid., which appears in one of our opinions.
To begin with, Justice Kennedy's reading of "significant nexus" bears no easily recognizable relation to either the case that used it (SWANCC) or to the earlier case that that case purported to be interpreting (Riverside Bayview). To establish a "significant nexus," Justice Kennedy would require the Corps to "establish ... on a case-by-case basis" that wetlands adjacent to nonnavigable tributaries "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.' " Post, at 25, 23. This standard certainly does not come from Riverside Bayview, which explicitly rejected such case-by-case determinations of ecological significance for the jurisdictional question whether a wetland is covered, holding instead that all physically connected wetlands are covered. 474 U. S., at 135, n. 9. It is true enough that one reason for accepting that physical-connection criterion was the likelihood that a physically connected wetland would have an ecological effect upon the adjacent waters. But case-by-case determination of ecological effect was not the test. Likewise, that test cannot be derived from SWANCC's characterization of Riverside Bayview, which emphasized that the wetlands which possessed a "significant nexus" in that earlier case "actually abutted on a navigable waterway," 531 U. S., at 167, and which specifically rejected the argument that physically unconnected ponds could be included based on their ecological connection to covered waters. In fact, Justice Kennedy acknowledges that neither Riverside Bayview nor SWANCC required, for wetlands abutting navigable-in-fact waters, the case-by-case ecological determination that he proposes for wetlands that neighbor nonnavigable tributaries. See post, at 23. Thus, Justice Kennedy misreads SWANCC's "significant nexus" statement as mischaracterizing Riverside Bayview to adopt a case-by-case test of ecological significance; and then transfers that standard to a context that Riverside Bayview expressly declined to address (namely, wetlands nearby non-navigable tributaries); while all the time conceding that this standard does not apply in the context that Riverside Bayview did address (wetlands abutting navigable waterways). Truly, this is "turtles all the way down."14
But misreading our prior decisions is not the principal problem. The principal problem is reading them in utter isolation from the text of the Act. One would think, after reading Justice Kennedy's exegesis, that the crucial provision of the text of the CWA was a jurisdictional requirement of "significant nexus" between wetlands and navigable waters. In fact, however, that phrase appears nowhere in the Act, but is taken from SWANCC's cryptic characterization of the holding of Riverside Bayview. Our interpretation of the phrase is both consistent with those opinions and compatible with what the Act does establish as the jurisdictional criterion: "waters of the United States." Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"? Justice Kennedy's test is that they, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,' " post, at 23 (emphasis added). But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States?
Only by ignoring the text of the statute and by assuming that the phrase of SWANCC ("significant nexus") can properly be interpreted in isolation from that text does Justice Kennedy reach the conclusion he has arrived at. Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the "purpose" of the statute. Its purpose is to clean up the waters of the United States, and therefore anything that might "significantly affect" the purity of those waters bears a "significant nexus" to those waters, and thus (he never says this, but the text of the statute demands that he mean it) is those waters. This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose. To begin with, as we have discussed earlier, clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U. S. C. §1251(b). Justice Kennedy's test takes no account of this purpose. More fundamentally, however, the test simply rewrites the statute, using for that purpose the gimmick of "significant nexus." It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that "significantly affect the chemical, physical, and biological integrity of " waters of the United States. It did not do that, but instead explicitly limited jurisdiction to "waters of the United States."
Justice Kennedy's disposition would disallow some of the Corps' excesses, and in that respect is a more moderate flouting of statutory command than Justice Stevens'.15 In another respect, however, it is more extreme. At least Justice Stevens can blame his implausible reading of the statute upon the Corps. His error consists of giving that agency more deference than reason permits. Justice Kennedy, however, has devised his new statute all on his own. It purports to be, not a grudging acceptance of an agency's close-to-the-edge expansion of its own powers, but rather the most reasonable interpretation of the law. It is far from that, unless whatever affects waters is waters.
VIII
Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview.
* * *
We vacate the judgments of the Sixth Circuit in both No. 04-1034 and No. 04-1384, and remand both cases for further proceedings.
It is so ordered.
JOHN A. RAPANOS, et ux., et al., PETITIONERS
04-1034 v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04-1384 v.
UNITED STATES ARMY CORPS OF ENGINEERS et al.
1 on writs of certiorari to the united states court of
appeals for the sixth circuit
[June 19, 2006]
Chief Justice Roberts, concurring.
Five years ago, this Court rejected the position of the Army Corps of Engineers on the scope of its authority to regulate wetlands under the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC). The Corps had taken the view that its authority was essentially limitless; this Court explained that such a boundless view was inconsistent with the limiting terms Congress had used in the Act. Id., at 167-174.
In response to the SWANCC decision, the Corps and the Environmental Protection Agency (EPA) initiated a rulemaking to consider "issues associated with the scope of waters that are subject to the Clean Water Act (CWA), in light of the U. S. Supreme Court decision in [SWANCC]." 68 Fed. Reg. 1991 (2003). The "goal of the agencies" was "to develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction and affording full protection to these waters through an appropriate focus of Federal and State resources consistent with the CWA." Ibid.
Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.
The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.
It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977)). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.*
JOHN A. RAPANOS, et ux., et al., PETITIONERS
04-1034 v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04-1384 v.
UNITED STATES ARMY CORPS OF ENGINEERS et al.
2 on writs of certiorari to the united states court of
appeals for the sixth circuit
[June 19, 2006]
Justice Kennedy, concurring in the judgment.
These consolidated cases require the Court to decide whether the term "navigable waters" in the Clean Water Act extends to wetlands that do not contain and are not adjacent to waters that are navigable in fact. In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), the Court held, under the circumstances presented there, that to constitute " 'navigable waters' " under the Act, a water or wetland must possess a "significant nexus" to waters that are or were navigable in fact or that could reasonably be so made. Id., at 167, 172. In the instant cases neither the plurality opinion nor the dissent by Justice Stevens chooses to apply this test; and though the Court of Appeals recognized the test's applicability, it did not consider all the factors necessary to determine whether the lands in question had, or did not have, the requisite nexus. In my view the cases ought to be remanded to the Court of Appeals for proper consideration of the nexus requirement.
I
Although both the plurality opinion and the dissent by Justice Stevens (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here.
A
The "objective" of the Clean Water Act (Act), is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U. S. C. §1251(a). To that end, the statute, among other things, prohibits "the discharge of any pollutant by any person" except as provided in the Act. §1311(a). As relevant here, the term "discharge of a pollutant" means "any addition of any pollutant to navigable waters from any point source." §1362(12). The term "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." §1362(6). The Secretary of the Army, acting through the Chief of Engineers of the Army Corps of Engineers, may issue permits for "discharge of dredged or fill material into the navigable waters at specified disposal sites." §§1344(a), (c), (d); but see §1344(f) (categorically exempting certain forms of "discharge of dredged or fill material" from regulation under §1311(a)). Pursuant to §1344(g), States with qualifying programs may assume certain aspects of the Corps' permitting responsibility. Apart from dredged or fill material, pollutant discharges require a permit from the Environmental Protection Agency (EPA), which also oversees the Corps' (and qualifying States') permitting decisions. See §§1311(a), 1342(a), 1344(c). Discharge of pollutants without an appropriate permit may result in civil or criminal liability. See §1319.
The statutory term to be interpreted and applied in the two instant cases is the term "navigable waters." The outcome turns on whether that phrase reasonably describes certain Michigan wetlands the Corps seeks to regulate. Under the Act "[t]he term 'navigable waters' means the waters of the United States, including the territorial seas." §1362(7). In a regulation the Corps has construed the term "waters of the United States" to include not only waters susceptible to use in interstate commerce--the traditional understanding of the term "navigable waters of the United States," see, e.g., United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406-408 (1940); The Daniel Ball, 10 Wall. 557, 563-564 (1871)--but also tributaries of those waters and, of particular relevance here, wetlands adjacent to those waters or their tributaries. 33 CFR §§328.3(a)(1), (5), (7) (2005). The Corps views tributaries as within its jurisdiction if they carry a perceptible "ordinary high water mark." §328.4(c); 65 Fed. Reg. 12823 (2000). An ordinary high-water mark is a "line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." 33 CFR §328.3(e).
Contrary to the plurality's description, ante, at 2-3, 15, wetlands are not simply moist patches of earth. They are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." §328.3(b). The Corps' Wetlands Delineation Manual, including over 100 pages of technical guidance for Corps officers, interprets this definition of wetlands to require: (1) prevalence of plant species typically adapted to saturated soil conditions, determined in accordance with the United States Fish and Wildlife Service's National List of Plant Species that Occur in Wetlands; (2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient time during the growing season to become anaerobic, or lacking in oxygen, in the upper part; and (3) wetland hydrology, a term generally requiring continuous inundation or saturation to the surface during at least five percent of the growing season in most years. See Wetlands Research Program Technical Report Y-87-1 (on-line edition), pp. 12-34 (Jan. 1987), (all Internet material as visited June 16, 2006, and available in Clerk of Court's case file). Under the Corps' regulations, wetlands are adjacent to tributaries, and thus covered by the Act, even if they are "separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like." §328.3(c).
B
The first consolidated case before the Court, Rapanos v. United States, No. 04-1034, relates to a civil enforcement action initiated by the United States in the United States District Court for the Eastern District of Michigan against the owners of three land parcels near Midland, Michigan. The first parcel, known as the Salzburg site, consists of roughly 230 acres. The District Court, applying the Corps' definition of wetlands, found based on expert testimony that the Salzburg site included 28 acres of wetlands. The District Court further found that "the Salzburg wetlands have a surface water connection to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron." App. to Pet. for Cert. B11. Water from the site evidently spills into the Hoppler Drain, located just north of the property, which carries water into the Hoppler Creek and thence into the Kawkawlin River, which is navigable. A state official testified that he observed carp spawning in a ditch just north of the property, indicating a direct surface-water connection from the ditch to the Saginaw Bay of Lake Huron.
The second parcel, known as the Hines Road site, consists of 275 acres, which the District Court found included 64 acres of wetlands. The court found that the wetlands have a surface-water connection to the Rose Drain, which carries water into the Tittabawassee River, a navigable waterway. The final parcel, called the Pine River site, consists of some 200 acres. The District Court found that 49 acres were wetlands and that a surface water connection linked the wetlands to the nearby Pine River, which flows into Lake Huron.
At all relevant times, John Rapanos owned the Salzburg site; a company he controlled owned the Hines Road site; and Rapanos' wife and a company she controlled (possibly in connection with another entity) owned the Pine River site. All these parties are petitioners here. In December 1988, Mr. Rapanos, hoping to construct a shopping center, asked the Michigan Department of Natural Resources to inspect the Salzburg site. A state official informed Rapanos that while the site likely included regulated wetlands, Rapanos could proceed with the project if the wetlands were delineated (that is, identified and preserved) or if a permit were obtained. Pursuing the delineation option, Rapanos hired a wetlands consultant to survey the property. The results evidently displeased Rapanos: Informed that the site included between 48 and 58 acres of wetlands, Rapanos allegedly threatened to "destroy" the consultant unless he eradicated all traces of his report. Rapanos then ordered $350,000-worth of earthmoving and landclearing work that filled in 22 of the 64 wetlands acres on the Salzburg site. He did so without a permit and despite receiving cease-and-desist orders from state officials and the EPA. At the Hines Road and Pine River sites, construction work--again conducted in violation of state and federal compliance orders--altered an additional 17 and 15 wetlands acres, respectively.
The Federal Government brought criminal charges against Rapanos. In the suit at issue here, however, the United States alleged civil violations of the Clean Water Act against all the Rapanos petitioners. Specifically, the Government claimed that petitioners discharged fill into jurisdictional wetlands, failed to respond to requests for information, and ignored administrative compliance orders. See 33 U. S. C. §§1311(a), 1318(a), 1319(a). After a 13-day bench trial, the District Court made the findings noted earlier and, on that basis, upheld the Corps' jurisdiction over wetlands on the three parcels. On the merits the court ruled in the Government's favor, finding that violations occurred at all three sites. As to two other sites, however, the court rejected the Corps' claim to jurisdiction, holding that the Government had failed to carry its burden of proving the existence of wetlands under the three-part regulatory definition. (These two parcels are no longer at issue.) The United States Court of Appeals for the Sixth Circuit affirmed. 376 F. 3d 629, 634 (2004). This Court granted certiorari to consider the Corps' jurisdiction over wetlands on the Salzburg, Hines Road, and Pine River sites. 546 U. S. ___ (2005).
The second consolidated case, Carabell, No. 04-1384, involves a parcel shaped like a right triangle and consisting of some 19.6 acres, 15.9 of which are forested wetlands. 257 F. Supp. 2d 917, 923 (ED Mich. 2003). The property is located roughly one mile from Lake St. Clair, a 430-square-mile lake located between Michigan and Canada that is popular for boating and fishing and produces some 48 percent of the sport fish caught in the Great Lakes, see Brief for Macomb County, Michigan as Amicus Curiae 2. The right-angle corner of the property is located to the northwest. The hypotenuse, which runs from northeast to southwest, lies alongside a man-made berm that separates the property from a ditch. At least under current conditions--that is, without the deposit of fill in the wetlands that the landowners propose--the berm ordinarily, if not always, blocks surface-water flow from the wetlands into the ditch. But cf. App. 186a (administrative hearing testimony by consultant for Carabells indicating "you would start seeing some overflow" in a "ten year storm"). Near the northeast corner of the property, the ditch connects with the Sutherland-Oemig Drain, which carries water continuously throughout the year and empties into Auvase Creek. The creek in turn empties into Lake St. Clair. At its southwest end, the ditch connects to other ditches that empty into the Auvase Creek and thence into Lake St. Clair.
In 1993 petitioners Keith and June Carabell sought a permit from the Michigan Department of Environmental Quality (MDEQ), which has assumed permitting functions of the Corps pursuant to §1344(g). Petitioners hoped to fill in the wetlands and construct 130 condominium units. Although the MDEQ denied the permit, a State Administrative Law Judge directed the agency to approve an alternative plan, proposed by the Carabells, that involved the construction of 112 units. This proposal called for filling in 12.2 acres of the property while creating retention ponds on 3.74 acres. Because the EPA had objected to the permit, jurisdiction over the case transferred to the Corps. See §1344(j).
The Corps' district office concluded that the Carabells' property "provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair." Id., at 127a. The district office denied the permit, and the Corps upheld the denial in an administrative appeal. The Carabells, challenging both the Corps' jurisdiction and the merits of the permit denial, sought judicial review pursuant to the Administrative Procedure Act, 5 U. S. C. §706(2)(A). The United States District Court for the Eastern District of Michigan granted summary judgment to the Corps, 257 F. Supp. 2d 917, and the United States Court of Appeals for the Sixth Circuit affirmed, 391 F. 3d 704 (2005). This Court granted certiorari to consider the jurisdictional question. 546 U. S. ___ (2005).
II
Twice before the Court has construed the term "navigable waters" in the Clean Water Act. In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), the Court upheld the Corps' jurisdiction over wetlands adjacent to navigable-in-fact waterways. Id., at 139. The property in Riverside Bayview, like the wetlands in the Carabell case now before the Court, was located roughly one mile from Lake St. Clair, see United States v. Riverside Bayview Homes, Inc., 729 F. 2d 391, 392 (CA6 1984) (decision on review in Riverside Bayview), though in that case, unlike Carabell, the lands at issue formed part of a wetland that directly abutted a navigable-in-fact creek, 474 U. S., at 131. In regulatory provisions that remain in effect, the Corps had concluded that wetlands perform important functions such as filtering and purifying water draining into adjacent water bodies, 33 CFR §320.4(b)(2)(vii), slowing the flow of runoff into lakes, rivers, and streams so as to prevent flooding and erosion, §§320.4(b)(2)(iv), (v), and providing critical habitat for aquatic animal species, §320.4(b)(2)(i). 474 U. S., at 134-135. Recognizing that "[a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress," id., at 131 (citing Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985), and Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984)), the Court held that "the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act," 474 U. S., at 134. The Court reserved, however, the question of the Corps' authority to regulate wetlands other than those adjacent to open waters. See id., at 131-132, n. 8.
In SWANCC, the Court considered the validity of the Corps' jurisdiction over ponds and mudflats that were isolated in the sense of being unconnected to other waters covered by the Act. 531 U. S., at 171. The property at issue was an abandoned sand and gravel pit mining operation where "remnant excavation trenches" had "evolv[ed] into a scattering of permanent and seasonal ponds." Id., at 163. Asserting jurisdiction pursuant to a regulation called the "Migratory Bird Rule," the Corps argued that these isolated ponds were "waters of the United States" (and thus "navigable waters" under the Act) because they were used as habitat by migratory birds. Id., at 164-165. The Court rejected this theory. "It was the significant nexus between wetlands and 'navigable waters,' " the Court held, "that informed our reading of the [Act] in Riverside Bayview Homes." Id., at 167. Because such a nexus was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps' action. Id., at 172.
Riverside Bayview and SWANCC establish the framework for the inquiry in the cases now before the Court: Do the Corps' regulations, as applied to the wetlands in Carabell and the three wetlands parcels in Rapanos, constitute a reasonable interpretation of "navigable waters" as in Riverside Bayview or an invalid construction as in SWANCC? Taken together these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a "navigable water" under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.
A
The plurality's opinion begins from a correct premise. As the plurality points out, and as Riverside Bayview holds, in enacting the Clean Water Act Congress intended to regulate at least some waters that are not navigable in the traditional sense. Ante, at 12; Riverside Bayview, 474 U. S., at 133; see also SWANCC, supra, at 167. This conclusion is supported by "the evident breadth of congressional concern for protection of water quality and aquatic ecosystems." Riverside Bayview, supra, at 133; see also Milwaukee v. Illinois, 451 U. S. 304, 318 (1981) (describing the Act as "an all-encompassing program of water pollution regulation"). It is further compelled by statutory text, for the text is explicit in extending the coverage of the Act to some nonnavigable waters. In a provision allowing States to assume some regulatory functions of the Corps (an option Michigan has exercised), the Act limits States to issuing permits for:
"the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their ordinary high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction." 33 U. S. C. §1344(g)(1).
Were there no Clean Water Act "navigable waters" apart from waters "presently used" or "susceptible to use" in interstate commerce, the "other than" clause, which begins the long parenthetical statement, would overtake the delegation of authority the provision makes at the outset. Congress, it follows, must have intended a broader meaning for navigable waters. The mention of wetlands in the "other than" clause, moreover, makes plain that at least some wetlands fall within the scope of the term "navigable waters." See Riverside Bayview, supra, at 138-139, and n. 11.
From this reasonable beginning the plurality proceeds to impose two limitations on the Act; but these limitations, it is here submitted, are without support in the language and purposes of the Act or in our cases interpreting it. First, because the dictionary defines "waters" to mean "water '[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,' or 'the flowing or moving masses, as of waves or floods, making up such streams or bodies," ante, at 13 (quoting Webster's New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster's Second)), the plurality would conclude that the phrase "navigable waters" permits Corps and EPA jurisdiction only over "relatively permanent, standing or flowing bodies of water," ante, at 13-14--a category that in the plurality's view includes "seasonal" rivers, that is, rivers that carry water continuously except during "dry months," but not intermittent or ephemeral streams, ante, at 13-15, and n. 5. Second, the plurality asserts that wetlands fall within the Act only if they bear "a continuous surface connection to bodies that are 'waters of the United States' in their own right"--waters, that is, that satisfy the plurality's requirement of permanent standing water or continuous flow. Ante, at 23-24.
The plurality's first requirement--permanent standing water or continuous flow, at least for a period of "some months," ante, at 13-14, and n. 5--makes little practical sense in a statute concerned with downstream water quality. The merest trickle, if continuous, would count as a "water" subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not. Though the plurality seems to presume that such irregular flows are too insignificant to be of concern in a statute focused on "waters," that may not always be true. Areas in the western parts of the Nation provide some examples. The Los Angeles River, for instance, ordinarily carries only a trickle of water and often looks more like a dry roadway than a river. See, e.g., B. Gumprecht, The Los Angeles River: Its Life, Death, and Possible Rebirth 1-2 (1999); Martinez, City of Angels' Signature River Tapped for Rebirth, Chicago Tribune, Apr. 10, 2005, section 1, p. 8. Yet it periodically releases water-volumes so powerful and destructive that it has been encased in concrete and steel over a length of some 50 miles. See Gumprecht, supra, at 227. Though this particular waterway might satisfy the plurality's test, it is illustrative of what often-dry watercourses can become when rain waters flow. See, e.g., County of Los Angeles Dept. of Public Works, Water Resources Division:
2002-2003 Hydrologic Report, Runoff, Daily Discharge, F377-R BOUQUET CANYON CREEK at Urbandale Avenue 11107860 Bouquet Creek Near Saugus,
CA, (indicating creek carried no flow for much of the year but carried 122 cubic feet per second on Feb. 12, 2003).
To be sure, Congress could draw a line to exclude irregular waterways, but nothing in the statute suggests it has done so. Quite the opposite, a full reading of the dictionary definition precludes the plurality's emphasis on permanence: The term "waters" may mean "flood or inundation," Webster's Second 2882, events that are impermanent by definition. Thus, although of course the Act's use of the adjective "navigable" indicates a focus on waterways rather than floods, Congress' use of "waters" instead of "water," ante, at 13, does not necessarily carry the connotation of "relatively permanent, standing or flowing bodies of water," ante, at 13-14. (And contrary to the plurality's suggestion, ante, at 13, n. 4, there is no indication in the dictionary that the "flood or inundation" definition is limited to poetry.) In any event, even granting the plurality's preferred definition--that "waters" means "water '[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,' " ante, at 13 (quoting Webster's Second 2882)--the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of " 'a current or course of water or other fluid, flowing on the earth,' " ante, at 14, n. 6 (quoting Webster's Second 2493), while it is flowing. See post, at 15-16 (Stevens, J., dissenting) (also noting Court's use of the phrase " 'intermittent stream' " in Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 335 (1933)). It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.
Apart from the dictionary, the plurality invokes Riverside Bayview to support its interpretation that the term "waters" is so confined, but this reliance is misplaced. To be sure, the Court there compared wetlands to "rivers, streams, and other hydrographic features more conventionally identifiable as 'waters.' " 474 U. S., at 131. It is quite a stretch to claim, however, that this mention of hydrographic features "echoe[s]" the dictionary's reference to " 'geographical features such as oceans, rivers, [and] lakes.' " Ante, at 16 (quoting Webster's Second 2882). In fact the Riverside Bayview opinion does not cite the dictionary definition on which the plurality relies, and the phrase "hydrographic features" could just as well refer to intermittent streams carrying substantial flow to navigable waters. See Webster's Second 1221 (defining "hydrography" as "[t]he description and study of seas, lakes, rivers, and other waters; specif[ically] ... [t]he measurement of flow and investigation of the behavior of streams, esp[ecially] with reference to the control or utilization of their waters").
Also incorrect is the plurality's attempt to draw support from the statutory definition of "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U. S. C. §1362(14). This definition is central to the Act's regulatory structure, for the term "discharge of a pollutant" is defined in relevant part to mean "any addition of any pollutant to navigable waters from any point source," §1362(12). Interpreting the point-source definition, the plurality presumes, first, that the point-source examples describe "watercourses through which intermittent waters typically flow," and second, that point sources and navigable waters are "separate and distinct categories." Ante, at 17. From this the plurality concludes, by a sort of negative inference, that navigable waters may not be intermittent. The conclusion is unsound. Nothing in the point-source definition requires an intermittent flow. Polluted water could flow night and day from a pipe, channel, or conduit and yet still qualify as a point source; any contrary conclusion would likely exclude, among other things, effluent streams from sewage treatment plants. As a result, even were the statute read to require continuity of flow for navigable waters, certain water-bodies could conceivably constitute both a point source and a water. At any rate, as the dissent observes, the fact that point sources may carry continuous flow undermines the plurality's conclusion that covered "waters" under the Act may not be discontinuous. See post, at 17.
The plurality's second limitation--exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters--is also unpersuasive. To begin with, the plurality is wrong to suggest that wetlands are "indistinguishable" from waters to which they bear a surface connection. Ante, at 37. Even if the precise boundary may be imprecise, a bog or swamp is different from a river. The question is what circumstances permit a bog, swamp, or other nonnavigable wetland to constitute a "navigable water" under the Act--as §1344(g)(1), if nothing else, indicates is sometimes possible, see supra, at 10-11. Riverside Bayview addressed that question and its answer is inconsistent with the plurality's theory. There, in upholding the Corps' authority to regulate "wetlands adjacent to other bodies of water over which the Corps has jurisdiction," the Court deemed it irrelevant whether "the moisture creating the wetlands ... find[s] its source in the adjacent bodies of water." 474 U. S., at 135. The Court further observed that adjacency could serve as a valid basis for regulation even as to "wetlands that are not significantly intertwined with the ecosystem of adjacent waterways." Id., at 135, n. 9. "If it is reasonable," the Court explained, "for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand." Ibid.
The Court in Riverside Bayview did note, it is true, the difficulty of defining where "water ends and land begins," id., at 132, and the Court cited that problem as one reason for deferring to the Corps' view that adjacent wetlands could constitute waters. Given, however, the further recognition in Riverside Bayview that an overinclusive definition is permissible even when it reaches wetlands holding moisture disconnected from adjacent water-bodies, id., at 135, and n. 9, Riverside Bayview's observations about the difficulty of defining the water's edge cannot be taken to establish that when a clear boundary is evident, wetlands beyond the boundary fall outside the Corps' jurisdiction.
For the same reason Riverside Bayview also cannot be read as rejecting only the proposition, accepted by the Court of Appeals in that case, that wetlands covered by the Act must contain moisture originating in neighboring waterways. See id., at 125, 134. Since the Court of Appeals had accepted that theory, the Court naturally addressed it. Yet to view the decision's reasoning as limited to that issue--an interpretation the plurality urges here, ante, at 33, n. 13--would again overlook the opinion's broader focus on wetlands' "significant effects on water quality and the aquatic ecosystem," 474 U. S., at 135, n. 9. In any event, even were this reading of Riverside Bayview correct, it would offer no support for the plurality's proposed requirement of a "continuous surface connection," ante, at 23. The Court in Riverside Bayview rejected the proposition that origination in flooding was necessary for jurisdiction over wetlands. It did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite. See 474 U. S., at 134 (noting that the Corps' view was valid "even for wetlands that are not the result of flooding or permeation" (emphasis added)). Needless to say, a continuous connection is not necessary for moisture in wetlands to result from flooding--the connection might well exist only during floods.
SWANCC, likewise, does not support the plurality's surface-connection requirement. SWANCC's holding that "nonnavigable, isolated, intrastate waters," 531 U. S., at 171, are not "navigable waters" is not an explicit or implicit overruling of Riverside Bayview's approval of adjacency as a factor in determining the Corps' jurisdiction. In rejecting the Corps' claimed authority over the isolated ponds in SWANCC, the Court distinguished adjacent nonnavigable waters such as the wetlands addressed in Riverside Bayview. 531 U. S., at 167, 170-171.
As Riverside Bayview recognizes, the Corps' adjacency standard is reasonable in some of its applications. Indeed, the Corps' view draws support from the structure of the Act, while the plurality's surface-water-connection requirement does not.
As discussed above, the Act's prohibition on the discharge of pollutants into navigable waters, 33 U. S. C. §1311(a), covers both the discharge of toxic materials such as sewage, chemical waste, biological material, and radioactive material and the discharge of dredged spoil, rock, sand, cellar dirt, and the like. All these substances are defined as pollutants whose discharge into navigable waters violates the Act. §§1311(a), 1362(6), (12). One reason for the parallel treatment may be that the discharge of fill material can impair downstream water quality. The plurality argues otherwise, asserting that dredged or fill material "does not normally wash downstream." Ante, at 26. As the dissent points out, this proposition seems questionable as an empirical matter. See post, at 22. It seems plausible that new or loose fill, not anchored by grass or roots from other vegetation, could travel downstream through waterways adjacent to a wetland; at the least this is a factual possibility that the Corps' experts can better assess than can the plurality. Silt, whether from natural or human sources, is a major factor in aquatic environments, and it may clog waterways, alter ecosystems, and limit the useful life of dams. See, e.g., Fountain, Unloved, But Not Unbuilt, N. Y. Times, June 5, 2005 section 4, p. 3, col. 1; DePalma, Dam to Be Demolished to Save an Endangered Species, N. Y. Times, Apr. 26, 2004, section B, p. 1, col. 2; MacDougall, Damage Can Be Irreversible, Los Angeles Times, June 19, 1987, pt. 1, p. 10, col. 4.
Even granting, however, the plurality's assumption that fill material will stay put, Congress' parallel treatment of fill material and toxic pollution may serve another purpose. As the Court noted in Riverside Bayview, "the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, 33 CFR §320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§320.4(b)(2)(iv) and (v)." 474 U. S., at 134. Where wetlands perform these filtering and runoff-control functions, filling them may increase downstream pollution, much as a discharge of toxic pollutants would. Not only will dirty water no longer be stored and filtered but also the act of filling and draining itself may cause the release of nutrients, toxins, and pathogens that were trapped, neutralized, and perhaps amenable to filtering or detoxification in the wetlands. See U. S. Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTA-O-206 pp. 43, 48-52 (Mar. 1984), (hereinafter OTA). In many cases, moreover, filling in wetlands separated from another water by a berm can mean that flood water, impurities, or runoff that would have been stored or contained in the wetlands will instead flow out to major waterways. With these concerns in mind, the Corps' definition of adjacency is a reasonable one, for it may be the absence of an interchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme.
In sum the plurality's opinion is inconsistent with the Act's text, structure, and purpose. As a fallback the plurality suggests that avoidance canons would compel its reading even if the text were unclear. Ante, at 18-20. In SWANCC, as one reason for rejecting the Corps' assertion of jurisdiction over the isolated ponds at issue there, the Court observed that this "application of [the Corps'] regulations" would raise significant questions of Commerce Clause authority and encroach on traditional state land-use regulation. 531 U. S., at 174. As SWANCC observed, ibid., and as the plurality points out here, ante, at 18, the Act states that "[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water resources," 33 U. S. C. §1251(b). The Court in SWANCC cited this provision as evidence that a clear statement supporting jurisdiction in applications raising constitutional and federalism difficulties was lacking. 531 U. S., at 174.
The concerns addressed in SWANCC do not support the plurality's interpretation of the Act. In SWANCC, by interpreting the Act to require a significant nexus with navigable waters, the Court avoided applications--those involving waters without a significant nexus--that appeared likely, as a category, to raise constitutional difficulties and federalism concerns. Here, in contrast, the plurality's interpretation does not fit the avoidance concerns it raises. On the one hand, when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters--even though such navigable waters were traditionally subject to federal authority. On the other hand, by saying the Act covers wetlands (however remote) possessing a surface-water connection with a continuously flowing stream (however small), the plurality's reading would permit applications of the statute as far from traditional federal authority as are the waters it deems beyond the statute's reach. Even assuming, then, that federal regulation of remote wetlands and nonnavigable waterways would raise a difficult Comerce Clause issue notwithstanding those waters' aggregate effects on national water quality, but cf. Wickard v. Filburn, 317 U. S. 111 (1942); see also infra, at 25-26, the plurality's reading is not responsive to this concern. As for States' "responsibilities and rights," §1251(b), it is noteworthy that 33 States plus the District of Columbia have filed an amici brief in this litigation asserting that the Clean Water Act is important to their own water policies. See Brief for States of New York et al. 1-3. These amici note, among other things, that the Act protects downstream States from out-of-state pollution that they cannot themselves regulate. Ibid.
It bears mention also that the plurality's overall tone and approach--from the characterization of acres of wetlands destruction as "backfilling ... wet fields," ante, at 2, to the rejection of Corps authority over "man-made drainage ditches" and "dry arroyos" without regard to how much water they periodically carry, ante, at 15, to the suggestion, seemingly contrary to Congress' judgment, that discharge of fill material is inconsequential for adjacent waterways, ante, at 26, and n. 11--seems unduly dismissive of the interests asserted by the United States in these cases. Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example, amici here have noted that nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, "dead zone" in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey. Brief for Association of State Wetland Managers et al. 21-23; Brief for Environmental Law Institute 23. Scientific evidence indicates that wetlands play a critical role in controlling and filtering runoff. See, e.g., OTA 43, 48-52; R. Tiner, In Search of Swampland: A Wetland Sourcebook and Field Guide 93-95 (2d ed. 2005); Whitmire & Hamilton, Rapid Removal of Nitrate and Sulfate in Freshwater Wetland Sediments, 34 J. Env. Quality 2062 (2005). It is true, as the plurality indicates, that environmental concerns provide no reason to disregard limits in the statutory text, ante, at 27, but in my view the plurality's opinion is not a correct reading of the text. The limits the plurality would impose, moreover, give insufficient deference to Congress' purposes in enacting the Clean Water Act and to the authority of the Executive to implement that statutory mandate.
Finally, it should go without saying that because the plurality presents its interpretation of the Act as the only permissible reading of the plain text, ante, at 20, 23-24, the Corps would lack discretion, under the plurality's theory, to adopt contrary regulations. The Chief Justice suggests that if the Corps and EPA had issued new regulations after SWANCC they would have "enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority" and thus could have avoided litigation of the issues we address today. Ante, at 2. That would not necessarily be true under the opinion The Chief Justice has joined. New rulemaking could have averted the disagreement here only if the Corps had anticipated the unprecedented reading of the Act that the plurality advances.
B
While the plurality reads nonexistent requirements into the Act, the dissent reads a central requirement out--namely, the requirement that the word "navigable" in "navigable waters" be given some importance. Although the Court has held that the statute's language invokes Congress' traditional authority over waters navigable in fact or susceptible of being made so, SWANCC, 531 U. S., at 172 (citing Appalachian Power, 311 U. S., at 407-408), the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters. The deference owed to the Corps' interpretation of the statute does not extend so far.
Congress' choice of words creates difficulties, for the Act contemplates regulation of certain "navigable waters" that are not in fact navigable. Supra, at 10-11. Nevertheless, the word "navigable" in the Act must be given some effect. See SWANCC, supra, at 172. Thus, in SWANCC the Court rejected the Corps' assertion of jurisdiction over isolated ponds and mudflats bearing no evident connection to navigable-in-fact waters. And in Riverside Bayview, while the Court indicated that "the term 'navigable' as used in the Act is of limited import," 474 U. S., at 133, it relied, in upholding jurisdiction, on the Corps' judgment that "wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water," id., at 135. The implication, of course, was that wetlands' status as "integral parts of the aquatic environment"--that is, their significant nexus with navigable waters--was what established the Corps' jurisdiction over them as waters of the United States.
Consistent with SWANCC and Riverside Bayview and with the need to give the term "navigable" some meaning, the Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. The required nexus must be assessed in terms of the statute's goals and purposes. Congress enacted the law to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a), and it pursued that objective by restricting dumping and filling in "navigable waters," §§1311(a), 1362(12). With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters--functions such as pollutant trapping, flood control, and runoff storage. 33 CFR §320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters," if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable." When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term "navigable waters."
Although the dissent acknowledges that wetlands' ecological functions vis-À-vis other covered waters are the basis for the Corps' regulation of them, post, at 10-11, it concludes that the ambiguity in the phrase "navigable waters" allows the Corps to construe the statute as reaching all "non-isolated wetlands," just as it construed the Act to reach the wetlands adjacent to navigable-in-fact waters in Riverside Bayview, see post, at 11. This, though, seems incorrect. The Corps' theory of jurisdiction in these consolidated cases--adjacency to tributaries, however remote and insubstantial--raises concerns that go beyond the holding of Riverside Bayview; and so the Corps' assertion of jurisdiction cannot rest on that case.
As applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone. That is the holding of Riverside Bayview. Furthermore, although the Riverside Bayview Court reserved the question of the Corps' authority over "wetlands that are not adjacent to bodies of open water," 474 U. S., at 131-132, n. 8, and in any event addressed no factual situation other than wetlands adjacent to navigable-in-fact waters, it may well be the case that Riverside Bayview's reasoning--supporting jurisdiction without any inquiry beyond adjacency--could apply equally to wetlands adjacent to certain major tributaries. Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.
The Corps' existing standard for tributaries, however, provides no such assurance. As noted earlier, the Corps deems a water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a "line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics," §328.3(e). See supra, at 3. This standard presumably provides a rough measure of the volume and regularity of flow. Assuming it is subject to reasonably consistent application, but see U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297 pp. 3-4 (Feb. 2004), (noting variation in results among Corps district offices), it may well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute "navigable waters" under the Act. Yet the breadth of this standard--which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes towards it--precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope in SWANCC. Cf. Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (2003) (noting that " 'isolated' is generally a matter of degree").
When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction. Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute. Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region. That issue, however, is neither raised by these facts nor addressed by any agency regulation that accommodates the nexus requirement outlined here.
This interpretation of the Act does not raise federalism or Commerce Clause concerns sufficient to support a presumption against its adoption. To be sure, the significant nexus requirement may not align perfectly with the traditional extent of federal authority. Yet in most cases regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulty. Cf. Pierce County v. Guillen, 537 U. S. 129, 147 (2003) (upholding federal legislation "aimed at improving safety in the channels of commerce"); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 524-525 (1941) ("[J]ust as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in part in flood control on its tributaries ... . [T]he exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce"). As explained earlier, moreover, and as exemplified by SWANCC, the significant-nexus test itself prevents problematic applications of the statute. See supra, at 19-20; 531 U. S., at 174. The possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act's text and structure. See Gonzales v. Raich, 545 U. S. 1, __ (2005) (slip op., at 14) ("[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence" (internal quotation marks omitted)).
III
In both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above. Thus the end result in these cases and many others to be considered by the Corps may be the same as that suggested by the dissent, namely, that the Corps' assertion of jurisdiction is valid. Given, however, that neither the agency nor the reviewing courts properly considered the issue, a remand is appropriate, in my view, for application of the controlling legal standard.
Rapanos
As the dissent points out, in Rapanos, No. 04-1034, an expert whom the District Court found "eminently qualified" and "highly credible," App. to Pet. for Cert. B7, testified that the wetlands were providing "habitat, sediment trapping, nutrient recycling, and flood peak diminution, reduction flow water augmentation." 4 Tr. 96 (Apr. 5, 1999). Although the expert had "not studied the upstream drainage of these sites" and thus could not assert that the wetlands were performing important pollutant-trapping functions, ibid., he did observe:
"we have a situation in which the flood water attenuation in that water is held on the site in the wetland ... such that it does not add to flood peak. By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing the low water flow... . By the same token on all of the sites to the extent that they slow the flow of water off of the site they will also accumulate sediment and thus trap sediment and hold nutrients for use in those wetlands systems later in the season as well." Id., at 95-96.
In addition, in assessing the hydrology prong of the three-part wetlands test, see supra, at 3-4, the District Court made extensive findings regarding water tables and drainage on the parcels at issue. In applying the Corps' jurisdictional regulations, the District Court found that each of the wetlands bore surface water connections to tributaries of navigable-in-fact waters.
Much the same evidence should permit the establishment of a significant nexus with navigable-in-fact waters, particularly if supplemented by further evidence about the significance of the tributaries to which the wetlands are connected. The Court of Appeals, however, though recognizing that under SWANCC such a nexus was required for jurisdiction, held that a significant nexus "can be satisfied by the presence of a hydrologic connection." 376 F. 3d, at 639. Absent some measure of the significance of the connection for downstream water quality, this standard was too uncertain. Under the analysis described earlier,
supra, at 22-23, 25, mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood. In my view this case should be remanded so that the District Court may reconsider the evidence in light of the appropriate standard. See, e.g., Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982) ("When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings").
Carabell
In Carabell, No. 04-1384, the record also contains evidence bearing on the jurisdictional inquiry. The Corps noted in deciding the administrative appeal that "[b]esides the effects on wildlife habitat and water quality, the [district office] also noted that the project would have a major, long-term detrimental effect on wetlands, flood retention, recreation and conservation and overall ecology," App. 218a. Similarly, in the district office's permit evaluation, Corps officers observed:
"The proposed work would destroy/adversely impact an area that retains rainfall and forest nutrients and would replace it with a new source area for runoff pollutants. Pollutants from this area may include lawn fertilizers, herbicides, pesticides, road salt, oil, and grease. These pollutants would then runoff directly into the waterway... . Overall, the operation and use of the proposed activity would have a major, long term, negative impact on water quality. The cumulative impacts of numerous such projects would be major and negative as the few remaining wetlands in the area are developed." Id., at 97a-98a.
The Corps' evaluation further noted that by "eliminat[ing] the potential ability of the wetland to act as a sediment catch basin," the proposed project "would contribute to increased runoff and accretion ... along the drain and further downstream in Auvase Creek." Id., at 98a. And it observed that increased runoff from the site would likely cause downstream areas to "see an increase in possible flooding magnitude and frequency." Id., at 99a.
The conditional language in these assessments--"potential ability," "possible flooding"--could suggest an undue degree of speculation, and a reviewing court must identify substantial evidence supporting the Corps' claims, see 5 U. S. C. §706(2)(E). Nevertheless, the record does show that factors relevant to the jurisdictional inquiry have already been noted and considered. As in Rapanos, though, the record gives little indication of the quantity and regularity of flow in the adjacent tributaries--a consideration that may be important in assessing the nexus. Also, as in Rapanos, the legal standard applied to the facts was imprecise.
The Court of Appeals, considering the Carabell case after its Rapanos decision, framed the inquiry in terms of whether hydrologic connection is required to establish a significant nexus. The court held that it is not, and that much of its holding is correct. Given the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrologic connection (in the sense of interchange of waters) that shows the wetlands' significance for the aquatic system. In the administrative decision under review, however, the Corps based its jurisdiction solely on the wetlands' adjacency to the ditch opposite the berm on the property's edge. As explained earlier, mere adjacency to a tributary of this sort is insufficient; a similar ditch could just as well be located many miles from any navigable-in-fact water and carry only insubstantial flow towards it. A more specific inquiry, based on the significant nexus standard, is therefore necessary. Thus, a remand is again required to permit application of the appropriate legal standard. See, e.g., INS v. Orlando Ventura, 537 U. S. 12, 16 (2002) (per curiam) ("Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands").
* * *
In these consolidated cases I would vacate the judgments of the Court of Appeals and remand for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters.
JOHN A. RAPANOS, et ux., et al., PETITIONERS
04-1034 v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04-1384 v.
UNITED STATES ARMY CORPS OF ENGINEERS et al.
1 on writs of certiorari to the united states court of
appeals for the sixth circuit
[June 19, 2006]
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
In 1972, Congress decided to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by passing what we now call the Clean Water Act. 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq. The costs of achieving the Herculean goal of ending water pollution by 1985, see §1251(a), persuaded President Nixon to veto its enactment, but both Houses of Congress voted to override that veto by overwhelming margins. To achieve its goal, Congress prohibited "the discharge of any pollutant"--defined to include "any addition of any pollutant to navigable waters from any point source"--without a permit issued by the Army Corps of Engineers (Army Corps or Corps) or the Environmental Protection Agency (EPA). §§1311(a), 1362(12)(A). Congress further defined "navigable waters" to mean "the waters of the United States." §1362(7).
The narrow question presented in No. 04-1034 is whether wetlands adjacent to tributaries of traditionally navigable waters are "waters of the United States" subject to the jurisdiction of the Army Corps; the question in No. 04-1384 is whether a manmade berm separating a wetland from the adjacent tributary makes a difference. The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy today. Rejecting more than 30 years of practice by the Army Corps, the plurality disregards the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake. Justice Kennedy similarly fails to defer sufficiently to the Corps, though his approach is far more faithful to our precedents and to principles of statutory interpretation than is the plurality's.
In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term "waters of the United States" is a quintessential example of the Executive's reasonable interpretation of a statutory provision. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984).
Our unanimous decision in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), was faithful to our duty to respect the work product of the Legislative and Executive Branches of our Government. Today's judicial amendment of the Clean Water Act is not.
I
At each of the three sites at issue in No. 04-1034, the petitioners filled large areas of wetlands without permits, despite being on full notice of the Corps' regulatory requirements. Because the plurality gives short shrift to the facts of this case--as well as to those of No. 04-1384--I shall discuss them at some length.
The facts related to the 230-acre Salzburg site are illustrative. In 1988, John Rapanos asked the Michigan Department of Natural Resources (MDNR) to inspect the site "in order to discuss with him the feasibility of building a shopping center there." App. to Pet. for Cert. in No. 04-1034, p. B15. An MDNR inspector informed Rapanos that the land probably included wetlands that were "waters of the United States" and sent him an application for a permit under §404 of the Act.1 Rapanos then hired a wetland consultant, Dr. Frederick Goff. After Dr. Goff concluded that the land did in fact contain many acres of wetlands, "Rapanos threatened to 'destroy' Dr. Goff if he did not destroy the wetland report, and refused to pay Dr. Goff unless and until he complied." Ibid. In the meantime, without applying for a permit, Rapanos hired construction companies to do $350,000 worth of work clearing the land, filling in low spots, and draining subsurface water. After Rapanos prevented MDNR inspectors from visiting the site, ignored an MDNR cease-and-desist letter, and refused to obey an administrative compliance order issued by the EPA, the matter was referred to the Department of Justice. In the civil case now before us, the District Court found that Rapanos unlawfully filled 22 acres of wetlands.
Rapanos and his wife engaged in similar behavior at the Hines Road and Pine River sites. Without applying for §404 permits, they hired construction companies to perform extensive clearing and filling activities. They continued these activities even after receiving EPA administrative compliance orders directing them to cease the work immediately. They ultimately spent $158,000 at the 275-acre Hines Road site, filling 17 of its existing 64 acres of wetlands. At the 200-acre Pine River site, they spent $463,000 and filled 15 of its 49 acres of wetlands.
Prior to their destruction, the wetlands at all three sites had surface connections to tributaries of traditionally navigable waters. The Salzburg wetlands connected to a drain that flows into a creek that flows into the navigable Kawkawlin River. The Hines Road wetlands connected to a drain that flows into the navigable Tittabawassee River. And the Pine River wetlands connected with the Pine River, which flows into Lake Huron.
At trial, the Government put on a wetland expert, Dr. Daniel Willard, whom the trial court found "eminently qualified" and "highly credible." Id., at B7. Dr. Willard testified that the wetlands at these three sites provided ecological functions in terms of "habitat, sediment trapping, nutrient recycling, and flood peak diminution." 4 Tr. 96 (Apr. 5, 1999).2 He explained:
"[G]enerally for all of the . . . sites we have a situation in which the flood water attenuation in that water is held on the site in the wetland . . . such that it does not add to flood peak. By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing low water flow.
. . . . .
"By the same token on all of the sites to the extent that they slow the flow of water of the site they will also accumulate sediment and thus trap sediment and hold nutrients for use in those wetland systems later in the season as well." Id., at 95-96.
The District Court found that the wetlands at all three sites were covered by the Clean Water Act and that the Rapanoses had violated the Act by destroying them without permits. The Sixth Circuit unanimously affirmed. 376 F. 3d 629 (2004).
The facts of No. 04-1384 are less dramatic. The petitioners in that case own a 20-acre tract of land, of which 16 acres are wetlands, located in Macomb County a mile from Lake St. Clair. These wetlands border a ditch that flows into a drain that flows into a creek that flows into Lake St. Clair. A 4-foot-wide manmade berm separates the wetlands from the ditch; thus water rarely if ever passes from wetlands to ditch or vice versa.
Petitioners applied for a permit to fill most of these wetlands with 57,500 cubic yards of material. They intended to build a 112-unit condominium development on the site. After inspecting the site and considering comments from, among others, the Water Quality Unit of the Macomb County Prosecutor's Office (which urged the Corps to deny the permit because "[t]he loss of this high quality wetland area would have an unacceptable adverse effect on wildlife, water quality, and conservation of wetlands resources," App. in No. 04-1384, p. 79a), the Corps denied the permit. Id., at 84a-126a. As summarized in a letter sent to petitioners, reasons for denial included:
"Your parcel is primarily a forested wetland that provides valuable seasonal habitat for aquatic organisms and year round habitat for terrestrial organisms. Additionally, the site provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair. The minimization of impacts to these wetlands is important for conservation and the overall ecology of the region. Because the project development area is a forested wetland, the proposed project would destroy the resources in such a manner that they would not soon recover from impacts of the discharges. The extent of impacts in the project area when considered both individually and cumulatively would be unacceptable and contrary to the public interest." Id., at 127a-128a.
As in No. 04-1034, the unanimous judgment of the District and Circuit Judges was that the Corps has jurisdiction over this wetland because it is adjacent to a tributary of traditionally navigable waters. 391 F. 3d 704 (CA6 2004). The Solicitor General defends both judgments.
II
Our unanimous opinion in Riverside Bayview squarely controls these cases. There, we evaluated the validity of the very same regulations at issue today. These regulations interpret "waters of the United States" to cover all traditionally navigable waters; tributaries of these waters; and wetlands adjacent to traditionally navigable waters or their tributaries. 33 CFR §§328.3(a)(1), (5), and (7) (2005); §§323.2(a)(1), (5), and (7) (1985). Although the particular wetland at issue in Riverside Bayview abutted a navigable creek, we framed the question presented as whether the Clean Water Act "authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries." 474 U. S., at 123 (emphasis added).3
We held that, pursuant to our decision in Chevron,
"our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters.' " 474 U. S., at 131.
Applying this standard, we held that the Corps' decision to interpret "waters of the United States" as encompassing such wetlands was permissible. We recognized the practical difficulties in drawing clean lines between land and water, id., at 132, and deferred to the Corps' judgment that treating adjacent wetlands as "waters" would advance the "congressional concern for protection of water quality and aquatic ecosystems," id., at 133.
Contrary to the plurality's revisionist reading today, ante, at 21-24, 28-29, Riverside Bayview nowhere implied that our approval of "adjacent" wetlands was contingent upon an understanding that "adjacent" means having a "continuous surface connection" between the wetland and its neighboring creek, ante, at 23. Instead, we acknowledged that the Corps defined "adjacent" as including wetlands " 'that form the border of or are in reasonable proximity to other waters' " and found that the Corps reasonably concluded that adjacent wetlands are part of the waters of the United States. 474 U. S., at 134 (quoting 42 Fed. Reg. 37128 (1977)). Indeed, we explicitly acknowledged that the Corps' jurisdictional determination was reasonable even though
"not every adjacent wetland is of great importance to the environment of adjoining bodies of water. . . . If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps' definition is in fact lacking in importance to the aquatic environment . . . the Corps may always allow development of the wetland for other uses simply by issuing a permit." 474 U. S., at 135, n. 9.
In closing, we emphasized that the scope of the Corps' asserted jurisdiction over wetlands had been specifically brought to Congress' attention in 1977, that Congress had rejected an amendment that would have narrowed that jurisdiction, and that even proponents of the amendment would not have removed wetlands altogether from the definition of "waters of the United States." Id., at 135-139.
Disregarding the importance of Riverside Bayview, the plurality relies heavily on the Court's subsequent opinion in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC). In stark contrast to Riverside Bayview, however, SWANCC had nothing to say about wetlands, let alone about wetlands adjacent to traditionally navigable waters or their tributaries. Instead, SWANCC dealt with a question specifically reserved by Riverside Bayview, see n. 3, supra, namely, the Corps' jurisdiction over isolated waters--" 'waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.' " 531 U. S., at 168-169 (quoting 33 CFR §323.2(a)(5) (1978); emphasis added); see also 531 U. S., at 163 (citing 33 CFR §328.2(a)(3) (1999), which is the later regulatory equivalent to §323.2(a)(5) (1978)). At issue in SWANCC was "an abandoned sand and gravel pit . . . which provide[d] habitat for migratory birds" and contained a few pools of "nonnavigable, isolated, intrastate waters." 531 U. S., at 162, 166. The Corps had asserted jurisdiction over the gravel pit under its 1986 Migratory Bird Rule, which treated isolated waters as within its jurisdiction if migratory birds depended upon these waters. The Court rejected this jurisdictional basis since these isolated pools, unlike the wetlands at issue in Riverside Bayview, had no "significant nexus" to traditionally navigable waters. 531 U. S., at 167. In the process, the Court distinguished Riverside Bayview's reliance on Congress' decision to leave the Corps' regulations alone when it amended the Act in 1977, since " '[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation' " rather than on the Corps' jurisdiction over truly isolated waters. 531 U. S., at 170 (quoting 474 U. S., at 136).4
Unlike SWANCC and like Riverside Bayview, the cases before us today concern wetlands that are adjacent to "navigable bodies of water [or] their tributaries," 474 U. S., at 123. Specifically, these wetlands abut tributaries of traditionally navigable waters. As we recognized in Riverside Bayview, the Corps has concluded that such wetlands play important roles in maintaining the quality of their adjacent waters, see id., at 134-135, and consequently in the waters downstream. Among other things, wetlands can offer "nesting, spawning, rearing and resting sites for aquatic or land species"; "serve as valuable storage areas for storm and flood waters"; and provide "significant water purification functions." 33 CFR §320.4(b)(2) (2005); 474 U. S., at 134-135. These values are hardly "independent" ecological considerations as the plurality would have it, ante, at 23--instead, they are integral to the "chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a). Given that wetlands serve these important water quality roles and given the ambiguity inherent in the phrase "waters of the United States," the Corps has reasonably interpreted its jurisdiction to cover non-isolated wetlands. See 474 U. S., at 131-135.5
This conclusion is further confirmed by Congress' deliberate acquiescence in the Corps' regulations in 1977. Id., at 136. Both Chambers conducted extensive debates about the Corps' regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and appropriated funds for a " 'National Wetlands Inventory' " to help the States " 'in the development and operation of programs under this Act.' " Id., at 135-139 (quoting 33 U. S. C. §1288(i)(2)). We found these facts significant in Riverside Bayview, see 474 U. S., at 135-139, as we acknowledged in SWANCC. See 531 U. S., at 170-171 (noting that "[b]eyond Congress' desire to regulate wetlands adjacent to 'navigable waters,' respondents point us to no persuasive evidence" of congressional acquiescence (emphasis added)).
The Corps' exercise of jurisdiction is reasonable even though not every wetland adjacent to a traditionally navigable water or its tributary will perform all (or perhaps any) of the water quality functions generally associated with wetlands. Riverside Bayview made clear that jurisdiction does not depend on a wetland-by-wetland inquiry. 474 U. S., at 135, n. 9. Instead, it is enough that wetlands adjacent to tributaries generally have a significant nexus to the watershed's water quality. If a particular wetland is "not significantly intertwined with the ecosystem of adjacent waterways," then the Corps may allow its development "simply by issuing a permit." Ibid.6 Accordingly, for purposes of the Corps' jurisdiction it is of no significance that the wetlands in No. 04-1034 serve flood control and sediment sink functions, but may not do much to trap other pollutants, supra, at 4-5, and n. 2, or that the wetland in No. 04-1328 keeps excess water from Lake St. Clair but may not trap sediment, see supra, at 5-6.
Seemingly alarmed by the costs involved, the plurality shies away from Riverside Bayview's recognition that jurisdiction is not a case-by-case affair. I do not agree with the plurality's assumption that the costs of preserving wetlands are unduly high. It is true that the cost of §404 permits are high for those who must obtain them7--but these costs amount to only a small fraction of 1% of the $760 billion spent each year on private and public construction and development activity. Sunding & Zilberman 80. More significant than the plurality's exaggerated concern about costs, however, is the fact that its omission of any discussion of the benefits that the regulations at issue have produced sheds a revelatory light on the quality (and indeed the impartiality) of its cost-benefit analysis.8 The importance of wetlands for water quality
is hard to overstate. See, e.g., U. S. Congress, Office
of Technology Assessment, Wetlands: Their Use and Regulation, OTA-206, pp. 43-61 (Mar. 1984), (hereinafter OTA) (describing wetlands' role in floodpeak reduction, shoreline protection, ground water recharge, trapping of suspended sediment, filtering of toxic pollutants, and protection of fish and wildlife). See also ante, at 20 (Kennedy, J., concurring in judgment). Unsurprisingly, the Corps' approach has the overwhelming endorsement of numerous amici curiae, including 33 States and the county in which the property in No. 04-1384 is located.
In final analysis, however, concerns about the appropriateness of the Corps' 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary. Whether the benefits of particular conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges. The fact that large investments are required to finance large developments merely means that those who are most adversely affected by the Corps' permitting decisions are persons who have the ability to communicate effectively with their representatives. Unless and until they succeed in convincing Congress (or the Corps) that clean water is less important today than it was in the 1970's, we continue to owe deference to regulations satisfying the "evident breadth of congressional concern for protection of water quality and aquatic ecosystems" that all of the Justices on the Court in 1985 recognized in Riverside Bayview, 474 U. S., at 133.
III
Even setting aside the plurality's dramatic departure from our reasoning and holding in Riverside Bayview, its creative opinion is utterly unpersuasive. The plurality imposes two novel conditions on the exercise of the Corps' jurisdiction that can only muddy the jurisdictional waters. As Justice Kennedy observes, "these limitations . . . are without support in the language and purposes of the Act or in our cases interpreting it." Ante, at 11 (opinion concurring in judgment). The impropriety of crafting these new conditions is highlighted by the fact that no party or amicus has suggested either of them.9
First, ignoring the importance of preserving jurisdiction over water beds that are periodically dry, the plurality imposes a requirement that only tributaries with the "relatively permanent" presence of water fall within the Corps' jurisdiction. Ante, at 13-14. Under the plurality's view, then, the Corps can regulate polluters who dump dredge into a stream that flows year round but may not be able to regulate polluters who dump into a neighboring stream that flows for only 290 days of the year--even if the dredge in this second stream would have the same effect on downstream waters as the dredge in the year-round one. Ante, at 14, n. 5.10
To find this arbitrary distinction compelled by the statute, the plurality cites a dictionary for a proposition that it does not contain. The dictionary treats "streams" as "waters" but has nothing to say about whether streams must contain water year round to qualify as "streams." Ante, at 13-14, and n. 6 (citing Webster's New International Dictionary 2493 (2d ed. 1954) (hereinafter Webster's Second), as defining stream as a " 'current or course of water or other fluid, flowing on the earth' "). From this, the plurality somehow deduces that streams can never be intermittent or ephemeral (i.e., flowing for only part of the
year). Ante, at 13-15, and nn. 5-6. But common
sense and common usage demonstrate that intermit-
tent streams, like perennial streams, are still
streams.11 See, e.g., U. S. Dept. of Interior, U. S. Geological Survey, Topographic Map Symbols 3 (2005), (identifying symbols for "[p]erennial stream" and "[i]ntermittent stream," as well as for "[p]erennial river" and "[i]ntermittent river"). This was true well before the passage of the Act in 1972. E.g., Webster's Third New International Dictionary 1180 (1961) (hereinafter Webster's Third) (linking "intermittent" with "stream"). Indeed, we ourselves have used the term "intermittent stream" as far back as 1932. Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 335 (1933). Needless to say, Justice Brandeis' use of the term in a unanimous opinion should not be dismissed as merely a "useful oxymor[on]," ante, at 15, n. 6 (plurality opinion).
The plurality attempts to bolster its arbitrary jurisdictional line by citing two tangential statutory provisions and two inapplicable canons of construction. None comes close to showing that Congress directly spoke to whether "waters" requires the relatively permanent presence of water.
The first provision relied on by the plurality--the definition of "point source" in 33 U. S. C. §1362(14)--has no conceivable bearing on whether permanent tributaries should be treated differently from intermittent ones, since "pipe[s], ditch[es], channel[s], tunnel[s], conduit[s], [and] well[s]" can all hold water permanently as well as intermittently.12 The second provision is §1251(b), which announces a congressional policy to "recognize, preserve, and protect the primary responsibilities and rights of States" to prevent pollution, to plan development, and to consult with the EPA. Under statutory additions made in 1977 when Congress considered and declined to alter the Corps' interpretation of its broad regulatory jurisdiction, the States may run their own §404 programs. §§1344(g)-(h). As modified, §1251(b) specifically recognizes this role for the States as part of their primary responsibility for preventing water pollution. Even focusing only on the Act as it stood between 1972 and 1977, but see International Paper Co. v. Ouellette, 479 U. S. 481, 489-490 (1987) (interpreting §1251(b) in light of the 1977 additions), broad exercise of jurisdiction by the Corps still left the States with ample rights and responsibilities. See S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U. S. __, __ (2006) (slip op., at 14-15). States had the power to impose tougher water pollution standards than required by the Act, §1370, and to prevent the Corps and the EPA from issuing permits, §1341(a)(1)--not to mention nearly exclusive responsibility for containing pollution from nonpoint sources.
The two canons of construction relied on by the plurality similarly fail to overcome the deference owed to the Corps. First, the plurality claims that concerns about intruding on state power to regulate land use compel the conclusion that the phrase "waters of the United States" does not cover intermittent streams. As we have recognized, however, Congress found it " 'essential that discharge of pollutants be controlled at the source,' " Riverside Bayview, 474 U. S., at 133 (quoting S. Rep. No. 92-414, p. 77 (1972)), and the Corps can define "waters" broadly to accomplish this aim. Second, the plurality suggests that the canon of constitutional avoidance applies because the Corps' approach might exceed the limits of our Commerce Clause authority. Setting aside whether such a concern was proper in SWANCC, 531 U. S., at 173; but see id., at 192-196 (Stevens, J., dissenting), it is plainly not warranted here. The wetlands in these cases are not "isolated" but instead are adjacent to tributaries of traditionally navigable waters and play important roles in the watershed, such as keeping water out of the tributaries or absorbing water from the tributaries. "There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries." Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 525 (1941).
Most importantly, the plurality disregards the fundamental significance of the Clean Water Act. As then-Justice Rehnquist explained when writing for the Court in 1981, the Act was "not merely another law" but rather was "viewed by Congress as a 'total restructuring' and 'complete rewriting' of the existing water pollution legislation." Milwaukee v. Illinois, 451 U. S. 304, 317. "Congress' intent in enacting the [Act] was clearly to establish an all-encompassing program of water pollution regulation," and "the most casual perusal of the legislative history demonstrates that . . . views on the comprehensive nature of the legislation were practically universal." Id., at 318, and n. 12; see also 531 U. S., at 177-181 (Stevens, J., dissenting). The Corps has concluded that it must regulate pollutants at the time they enter ditches or streams with ordinary high-water marks--whether perennial, intermittent, or ephemeral--in order to properly control water pollution. 65 Fed. Reg. 12823 (2000). Because there is ambiguity in the phrase "waters of the United States" and because interpreting it broadly to cover such ditches and streams advances the purpose of the Act, the Corps' approach should command our deference. Intermittent streams can carry pollutants just as perennial streams can, and their regulation may prove as important for flood control purposes. The inclusion of all identifiable tributaries that ultimately drain into large bodies of water within the mantle of federal protection is surely wise.
The plurality's second statutory invention is as arbitrary as its first. Trivializing the significance of changing conditions in wetlands environments, the plurality imposes a separate requirement that "the wetland has a continuous surface connection" with its abutting waterway such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." Ante, at 24. An "intermittent, physically remote hydrologic connection" between the wetland and other waters is not enough. Ibid. Under this view, wetlands that border traditionally navigable waters or their tributaries and perform the essential function of soaking up overflow waters during hurricane season--thus reducing flooding downstream--can be filled in by developers with impunity, as long as the wetlands lack a surface connection with the adjacent waterway the rest of the year.
The plurality begins reasonably enough by recognizing that the Corps may appropriately regulate all wetlands " 'adjacent to' " other waters. Ante, at 21. This recognition is wise, since the statutory text clearly accepts this standard. Title 33 U. S. C. §1344(g)(1), added in 1977, includes "adjacent wetlands" in its description of "waters" and thus "expressly stated that the term 'waters' included adjacent wetlands." Riverside Bayview, 474 U. S., at 138. While this may not "conclusively determine the construction to be placed on the use of the term 'waters' elsewhere in the Act . . . , in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term 'waters' as used in the Act does not necessarily exclude 'wetlands.' " Id., at 138, n. 11.
The plurality goes on, however, to define " 'adjacent to' " as meaning "with a continuous surface connection to" other water. Ante, at 21-24. It is unclear how the plurality reached this conclusion, though it plainly neglected to consult a dictionary. Even its preferred Webster's Second defines the term as "[l]ying near, close, or contiguous; neighboring; bordering on" and acknowledges that "[o]bjects are Adjacent when they lie close to each other, but not necessarily in actual contact." Webster's Second 32 (emphasis added); see also Webster's Third 26. In any event, the proper question is not how the plurality would define "adjacent," but whether the Corps' definition is reasonable.
The Corps defines "adjacent" as "bordering, contiguous, or neighboring," and specifies that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.' " 33 CFR §328.3(c) (2005). This definition is plainly reasonable, both on its face and in terms of the purposes of the Act. While wetlands that are physically separated from other waters may perform less valuable functions, this is a matter for the Corps to evaluate in its permitting decisions. We made this clear in Riverside Bayview, 474 U. S., at 135, n. 9--which did not impose the plurality's new requirement despite an absence of evidence that the wetland at issue had the sort of continuous surface connection required by the plurality today. See supra, at 7; see also ante, at 15-17 (Kennedy, J., concurring in judgment) (observing that the plurality's requirement is inconsistent with Riverside Bayview). And as the facts of No. 04-1384 demonstrate, wetland separated by a berm from adjacent tributaries may still prove important to downstream water quality. Moreover, Congress was on notice of the Corps' definition of "adjacent" when it amended the Act in 1977 and added 33 U. S. C. §1344(g)(1). See 42 Fed. Reg. 37129 (1977).
Finally, implicitly recognizing that its approach endangers the quality of waters which Congress sought to protect, the plurality suggests that the EPA can regulate pollutants before they actually enter the "waters of the United States." Ante, at 24-27. I express no view on the merits of the plurality's reasoning, which relies heavily on a respect for lower court judgments that is conspicuously lacking earlier in its opinion, ante, at 8-10.
I do fail to understand, however, why the plurality would not similarly apply this logic to dredged and fill material. The EPA's authority over pollutants (other than dredged and fill materials) stems from the identical statutory language that gives rise to the Corps' §404 jurisdiction. The plurality claims that there is a practical difference, asserting that dredged and fill material "does not normally wash downstream." Ante, at 26. While more of this material will probably stay put than is true of soluble pollutants, the very existence of words like "alluvium" and "silt" in our language, see Webster's Third 59, 2119, suggests that at least some fill makes its way downstream. See also, e.g., United States v. Deaton, 332 F. 3d 698, 707 (CA4 2003) ("Any pollutant or fill material that degrades water quality in a tributary has the potential to move downstream and degrade the quality of the navigable waters themselves"). Moreover, such fill can harm the biological integrity of downstream waters even if it largely stays put upstream. The Act's purpose of protecting fish, see 33 U. S. C. §1251(a)(2); S. D. Warren Co., 547 U. S., at __ (slip op., at 13-14), could be seriously impaired by sediment in upstream waters where fish spawn, since excessive sediment can "smother bottom-dwelling invertebrates and impair fish spawning," OTA 48. See also, e.g., Erman & Hawthorne, The Quantitative Importance of an Intermittent Stream in the Spawning of Rainbow Trout, 105 Transactions of the American Fisheries Society 675-681 (1976); Brief for American Rivers et al. as Amici Curiae 14 (observing that anadromous salmon often spawn in small, intermittent streams).
IV
While I generally agree with Parts I and II-A of Justice Kennedy's opinion, I do not share his view that we should replace regulatory standards that have been in place for over 30 years with a judicially crafted rule distilled from the term "significant nexus" as used in SWANCC. To the extent that our passing use of this term has become a statutory requirement, it is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries. Riverside Bayview and SWANCC together make this clear. SWANCC's only use of the term comes in the sentence: "It was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the [Clean Water Act] in Riverside Bayview." 531 U. S., at 167. Because Riverside Bayview was written to encompass "wetlands adjacent to navigable waters and their tributaries," 474 U. S., at 123, and reserved only the question of isolated waters, see id., at 131-132, n. 8; see also n. 3, supra, its determination of the Corps' jurisdiction applies to the wetlands at issue in these cases.
Even setting aside the apparent applicability of Riverside Bayview. I think it clear that wetlands adjacent to tributaries of navigable waters generally have a "significant nexus" with the traditionally navigable waters downstream. Unlike the "nonnavigable, isolated, intrastate waters" in SWANCC, 531 U. S., at 171, these wetlands can obviously have a cumulative effect on downstream water flow by releasing waters at times of low flow or by keeping waters back at times of high flow. This logical connection alone gives the wetlands the "limited" connection to traditionally navigable waters that is all the statute requires, see id., at 172; 474 U. S., at 133--and disproves Justice Kennedy's claim that my approach gives no meaning to the word " ' navigable,' " ante, at 21 (opinion concurring in judgment). Similarly, these wetlands can preserve downstream water quality by trapping sediment, filtering toxic pollutants, protecting fish-spawning grounds, and so forth. While there may exist categories of wetlands adjacent to tributaries of traditionally navigable waters that, taken cumulatively, have no plausibly discernable relationship to any aspect of downstream water quality, I am skeptical. And even given Justice Kennedy's "significant nexus" test, in the absence of compelling evidence that many such categories do exist I see no reason to conclude that the Corps' longstanding regulations are overbroad.
Justice Kennedy's "significant nexus" test will probably not do much to diminish the number of wetlands covered by the Act in the long run. Justice Kennedy himself recognizes that the records in both cases contain evidence that "should permit the establishment of a significant nexus," ante, at 27, see also ante, at 26, and it seems likely that evidence would support similar findings as to most (if not all) wetlands adjacent to tributaries of navigable waters. But Justice Kennedy's approach will have the effect of creating additional work for all concerned parties. Developers wishing to fill wetlands adjacent to ephemeral or intermittent tributaries of traditionally navigable waters will have no certain way of knowing whether they need to get §404 permits or not. And the Corps will have to make case-by-case (or category-by-category) jurisdictional determinations, which will inevitably increase the time and resources spent processing permit applications. These problems are precisely the ones that Riverside Bayview's deferential approach avoided. See 474 U. S., at 135, n. 9 (noting that it "is of little moment" if the Corps' jurisdiction encompasses some wetlands "not significantly intertwined" with other waters of the United States). Unlike Justice Kennedy, I see no reason to change Riverside Bayview's approach--and every reason to continue to defer to the Executive's sensible, bright-line rule.
V
As I explained in SWANCC, Congress passed the Clean Water Act in response to wide-spread recognition--based on events like the 1969 burning of the Cuyahoga River in Cleveland--that our waters had become appallingly
polluted. 531 U. S., at 174-175 (dissenting opinion). The Act has largely succeeded in restoring the quality of
our Nation's waters. Where the Cuyahoga River was
once coated with industrial waste, "[t]oday, that loca-
tion is lined with restaurants and pleasure boat
slips." EPA, A Benefits Assessment of the Water
Pollution Control Programs Since 1972, p. 1-2 (Jan.
2000), . By curtailing the Corps' jurisdiction of more than 30 years, the plurality needlessly jeopardizes the quality of our waters. In doing so, the plurality disregards the deference it owes the Executive, the congressional acquiescence in the Executive's position that we recognized in Riverside Bayview, and its own obligation to interpret laws rather than to make them. While Justice Kennedy's approach has far fewer faults, nonetheless it also fails to give proper deference to the agencies entrusted by Congress to implement the Clean Water Act.
I would affirm the judgments in both cases, and respectfully dissent from the decision of five Members of this Court to vacate and remand. I close, however, by noting an unusual feature of the Court's judgments in these cases. It has been our practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate. That prior practice has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views.13 In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps' jurisdiction in both of these cases--and in all other cases in which either the plurality's or Justice Kennedy's test is satisfied--on remand each of the judgments should be reinstated if either of those tests is met.14
JOHN A. RAPANOS, et ux., et al., PETITIONERS
04-1034 v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04-1384 v.
UNITED STATES ARMY CORPS OF ENGINEERS et al.
1 on writs of certiorari to the united states court of
appeals for the sixth circuit
[June 19, 2006]
Justice Breyer, dissenting.
In my view, the authority of the Army Corps of Engineers under the Clean Water Act extends to the limits of congressional power to regulate interstate commerce. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 181-182 (2001) (SWANCC) (Stevens, J., dissenting). I therefore have no difficulty finding that the wetlands at issue in these cases are within the Corps' jurisdiction, and I join Justice Stevens' dissenting opinion.
My view of the statute rests in part upon the nature of the problem. The statute seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U. S. C. §1251(a). Those waters are so various and so intricately interconnected that Congress might well have decided the only way to achieve this goal is to write a statute that defines "waters" broadly and to leave the enforcing agency with the task of restricting the scope of that definition, either wholesale through regulation or retail through development permissions. That is why I believe that Congress, in using the term "waters of the United States," §1362(7), intended fully to exercise its relevant Commerce Clause powers.
I mention this because the Court, contrary to my view, has written a "nexus" requirement into the statute. SWANCC, supra, at 167; ante, at 22 (opinion of Kennedy, J.) ("[T]he Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense"). But it has left the administrative powers of the Army Corps of Engineers untouched. That agency may write regulations defining the term--something that it has not yet done. And the courts must give those regulations appropriate deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).
If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today's opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.
2 FOOTNOTES
Footnote *
Together with No. 04-1384, Carabell et al. v. United States Army Corps of Engineers et al., also on certiorari to the same court.
3 FOOTNOTES
Footnote 1
In issuing permits, the Corps directs that "[a]ll factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people." §320.4(a).
Footnote 2
We are indebted to the Sonoran court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters:
" 'Captain Renault [Claude Rains]: "What in heaven's name brought you to Casablanca?"
" 'Rick [Humphrey Bogart]: "My health. I came to Casablanca for the waters."
" 'Captain Renault: "The waters? What waters? We're in the desert."
" 'Rick: "I was misinformed.' " 408 F. 3d, at 1117.
Footnote 3
One possibility, which we ultimately find unsatisfactory, is that the "other" waters covered by 33 U. S. C. §1344(g)(1) are strictly intrastate waters that are traditionally navigable. But it would be unreasonable to interpret "the waters of the United States" to include all and only traditional navigable waters, both interstate and intrastate. This would preserve the traditional import of the qualifier "navigable" in the defined term "navigable waters," at the cost of depriving the qualifier "of the United States" in the definition of all meaning. As traditionally understood, the latter qualifier excludes intrastate waters, whether navigable or not. See The Daniel Ball, 10 Wall. 557, 563 (1871). In SWANCC, we held that "navigable" retained something of its traditional import. 531 U. S., at 172. A fortiori, the phrase "of the United States" in the definition retains some of its traditional meaning.
Footnote 4
Justice Kennedy observes, post, at 13 (opinion concurring in judgment), that the dictionary approves an alternative, somewhat poetic usage of "waters" as connoting "[a] flood or inundation; as the waters have fallen. 'The peril of waters, wind, and rocks.' Shak." Webster's Second 2882. It seems to us wholly unreasonable to interpret the statute as regulating only "floods" and "inundations" rather than traditional waterways--and strange to suppose that Congress had waxed Shakespearean in the definition section of an otherwise prosaic, indeed downright tedious, statute. The duller and more commonplace meaning is obviously intended.
Footnote 5
By describing "waters" as "relatively permanent," we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months--such as the 290-day, continuously flowing stream postulated by Justice Stevens' dissent (hereinafter the dissent), post, at 15. Common sense and common usage distinguish between a wash and seasonal river.
Though scientifically precise distinctions between "perennial" and "intermittent" flows are no doubt available, see, e.g., Dept. of Interior, U. S. Geological Survey, E. Hedman & W. Osterkamp, Streamflow Characteristics Related to Channel Geometry of Streams in Western United States 15 (1982) (Water-Supply Paper 2193), we have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a "wate[r] of the United States." It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that the dissent's "intermittent" and "ephemeral" streams, post, at 16 (opinion of Stevens, J.)--that is, streams whose flow is "[c]oming and going at intervals ... [b]roken, fitful," Webster's Second 1296, or "existing only, or no longer than, a day; diurnal ... short-lived," id., at 857--are not.
Footnote 6
The principal definition of "stream" likewise includes reference to such permanent, geographically fixed bodies of water: "[a] current or course of water or other fluid, flowing on the earth, as a river, brook, etc." Id., at 2493 (emphasis added). The other definitions of "stream" repeatedly emphasize the requirement of continuous flow: "[a] steady flow, as of water, air, gas, or the like"; "[a]nything issuing or moving with continued succession of parts"; "[a] continued current or course; current; drift." Ibid. (emphases added). The definition of the verb form of "stream" contains a similar emphasis on continuity: "[t]o issue or flow in a stream; to issue freely or move in a continuous flow or course." Ibid. (emphasis added). On these definitions, therefore, the Corps' phrases "intermittent streams," 33 CFR §328.3(a)(3) (2004), and "ephemeral streams," 65 Fed. Reg. 12823 (2000), are--like Senator Bentsen's " ' flowing gullies,' " post, at 16, n. 11 (opinion of Stevens, J.)--useful oxymora. Properly speaking, such entities constitute extant "streams" only while they are "continuous[ly] flow[ing]"; and the usually dry channels that contain them are never "streams." Justice Kennedy apparently concedes that "an intermittent flow can constitute a stream" only "while it is flowing," post, at 13 (emphasis added)--which would mean that the channel is a "water" covered by the Act only during those times when water flow actually occurs. But no one contends that federal jurisdiction appears and evaporates along with the water in such regularly dry channels.
Footnote 7
It is of course true, as the dissent and Justice Kennedy both observe, that ditches, channels, conduits and the like "can all hold water permanently as well as intermittently," post, at 17 (opinion of Stevens, J.); see also post, at 14-15 (opinion of Kennedy, J.). But when they do, we usually refer to them as "rivers," "creeks," or "streams." A permanently flooded ditch around a castle is technically a "ditch," but (because it is permanently filled with water) we normally describe it as a "moat." See Webster's Second 1575. And a permanently flooded man-made ditch used for navigation is normally described, not as a "ditch," but as a "canal." See id., at 388. Likewise, an open channel through which water permanently flows is ordinarily described as a "stream," not as a "channel," because of the continuous presence of water. This distinction is particularly apt in the context of a statute regulating water quality, rather than (for example) the shape of stream beds. Cf. Jennison v. Kirk, 98 U. S. 453, 454-456 (1879) (referring to man-made channels as "ditches" when the alleged injury arose from physical damage to the banks of the ditch); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 709 (1994) (referring to a water-filled tube as a "tunnel" in order to describe the shape of the conveyance, not the fact that it was water-filled), both cited post, at 17, n. 12 (opinion of Stevens, J.). On its only natural reading, such a statute that treats "waters" separately from "ditch[es], channel[s], tunnel[s], and conduit[s]," thereby distinguishes between continuously flowing "waters" and channels containing only an occasional or intermittent flow.
It is also true that highly artificial, manufactured, enclosed conveyance systems--such as "sewage treatment plants," post, at 15 (opinion of Kennedy, J.), and the "mains, pipes, hydrants, machinery, buildings, and other appurtenances and incidents" of the city of Knoxville's "system of waterworks," Knoxville Water Co. v. Knoxville, 200 U. S. 22, 27 (1906), cited post, at 17, n. 12 (opinion of Stevens, J.)--likely do not qualify as "waters of the United States," despite the fact that they may contain continuous flows of water. See post, at 15 (opinion of Kennedy, J.); post, at 17, n. 12 (opinion of Stevens, J.). But this does not contradict our interpretation, which asserts that relatively continuous flow is a necessary condition for qualification as a "water," not an adequate condition. Just as ordinary usage does not treat typically dry beds as "waters," so also it does not treat such elaborate, man-made, enclosed systems as "waters" on a par with "streams," "rivers," and "oceans."
Footnote 8
Justice Kennedy contends that the Corps' preservation of the "responsibilities and rights" of the States is adequately demonstrated by the fact that "33 States and the District of Columbia have filed an amici brief in this litigation" in favor of the Corps' interpretation, post, at 20. But it makes no difference to the statute's stated purpose of preserving States' "rights and responsibilities," §1251(b), that some States wish to unburden themselves of them. Legislative and executive officers of the States may be content to leave "responsibilit[y]" with the Corps because it is attractive to shift to another entity controversial decisions disputed between politically powerful, rival interests. That, however, is not what the statute provides.
Footnote 9
Justice Kennedy objects that our reliance on these two clear-statement rules is inappropriate because "the plurality's interpretation does not fit the avoidance concerns that it raises," post, at 19--that is, because our resolution both eliminates some jurisdiction that is clearly constitutional and traditionally federal, and retains some that is questionably constitutional and traditionally local. But a clear-statement rule can carry one only so far as the statutory text permits. Our resolution, unlike Justice Kennedy's, keeps both the overinclusion and the underinclusion to the minimum consistent with the statutory text. Justice Kennedy's reading--despite disregarding the text--fares no better than ours as a precise "fit" for the "avoidance concerns" that he also acknowledges. He admits, post, at 25, that "the significant nexus requirement may not align perfectly with the traditional extent of federal authority" over navigable waters--an admission that "tests the limits of understatement," Gonzales v. Oregon, 126 S. Ct. 904, 932 (2005) (Scalia, J., dissenting)--and it aligns even worse with the preservation of traditional state land-use regulation.
Footnote 10
Since the wetlands at issue in Riverside Bayview actually abutted waters of the United States, the case could not possibly have held that merely "neighboring" wetlands came within the Corps' jurisdiction. Obiter approval of that proposition might be inferred, however, from the opinion's quotation without comment of a statement by the Corps describing covered "adjacent" wetlands as those " 'that form the border of or are in reasonable proximity to other waters of the United States.' " 474 U. S., at 134 (quoting 42 Fed. Reg. 37128 (1977); emphasis added). The opinion immediately reiterated, however, that adjacent wetlands could be regarded as "the waters of the United States" in view of "the inherent difficulties of defining precise bounds to regulable waters," 474 U. S., at 134--a rationale that would have no application to physically separated "neighboring" wetlands. Given that the wetlands at issue in Riverside Bayview themselves "actually abut[ted] on a navigable waterway," id., at 135; given that our opinion recognized that unconnected wetlands could not naturally be characterized as " 'waters' " at all, id., at 132; and given the repeated reference to the difficulty of determining where waters end and wetlands begin; the most natural reading of the opinion is that a wetlands' mere "reasonable proximity" to waters of the United States is not enough to confer Corps jurisdiction. In any event, as discussed in our immediately following text, any possible ambiguity has been eliminated by SWANCC, 531 U. S. 159 (2001).
Footnote 11
The dissent argues that "the very existence of words like 'alluvium' and 'silt' in our language suggests that at least some [dredged or fill material] makes its way downstream," post, at 22 (citation omitted). See also post, at 17 (opinion of Kennedy, J.). By contrast, amici cite multiple empirical analyses that contradict the dissent's philological approach to sediment erosion--including one which concludes that "[t]he idea that the discharge of dredged or fill material into isolated waters, ephemeral drains or non-tidal ditches will pollute navigable waters located any appreciable distance from them lacks credibility." R. Pierce, Technical Principles Related to Establishing the Limits of Jurisdiction for Section 404 of the Clean Water Act 34-40 (Apr. 2003), available at tpreljscwa.pdf, cited in Brief for International Council of Shopping Centers et al. as Amici Curiae 26-27; Brief for Pulte Homes, Inc., et al. as Amici Curiae 20-21; Brief for Foundation for Environmental and Economic Progress et al. as Amici Curiae 29, and n. 53 ("Fill material does not migrate"). Such scientific analysis is entirely unnecessary, however, to reach the unremarkable conclusion that the deposit of mobile pollutants into upstream ephemeral channels is naturally described as an "addition ... to navigable waters," 33 U. S. C. §1362(12), while the deposit of stationary fill material generally is not.
Footnote 12
Nor does the passing reference to "wetlands adjacent thereto" in §1344(g)(1) purport to expand that statutory definition. As the dissent concedes, post, at 20, that reference merely confirms that the statutory definition can be read to include some wetlands--namely, those that directly "abut" covered waters. Riverside Bayview explicitly acknowledged that §1344(g)(1) "does not conclusively determine the construction to be placed on the use of the term 'waters' elsewhere in the Act (particularly in [§1362(7)], which contains the relevant definition of 'navigable waters'); however, ... it does at least suggest strongly that the term 'waters' as used in the Act does not necessarily exclude 'wetlands.' " 474 U. S., at 138, n. 11 (emphases added).
Footnote 13
The sole exception is in Justice Kennedy's opinion, which argues that Riverside Bayview rejected our physical-connection requirement by accepting as a given that any wetland formed by inundation from covered waters (whether or not continuously connected to them) is covered by the Act: "The Court in Riverside Bayview ... did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite. See 474 U. S., at 134 (noting that the Corps' view was valid 'even for wetlands that are not the result of flooding or permeation' (emphasis added))." Post, at 16. Of course Justice Kennedy himself fails to observe this supposed presumption, since his "significant nexus" test makes no exception for wetlands created by inundation. In any event, the language from Riverside Bayview in Justice Kennedy's parenthetical is wrenched out of context. The sentence which Justice Kennedy quotes in part immediately followed the Court's conclusion that "adjacent" wetlands are included because of "the inherent difficulties of defining precise bounds to regulable waters," 474 U. S., at 134. And the full sentence reads as follows: "This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water," ibid. (emphasis added). Clearly, the "wetlands" referred to in the sentence are only "adjacent" wetlands--namely, those with the continuous physical connection that the rest of the Riverside Bayview opinion required, see supra, at 21-23. Thus, it is evident that the quoted language was not at all a rejection of the physical-connection requirement, but rather a rejection of the alternative position (which had been adopted by the lower court in that case, see id., at 125) that the only covered wetlands are those created by inundation. As long as the wetland is "adjacent" to covered waters, said Riverside Bayview, its creation vel non by inundation is irrelevant.
Footnote 14
The allusion is to a classic story told in different forms and attributed to various authors. See, e.g., Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures 28-29 (1973). In our favored version, an Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down."
Footnote 15
It is unclear how much more moderate the flouting is, since Justice Kennedy's "significant nexus" standard is perfectly opaque. When, exactly, does a wetland "significantly affect" covered waters, and when are its effects "in contrast ... speculative or insubstantial"? Post, at 23. Justice Kennedy does not tell us clearly--except to suggest, post, at 25, that " ' "isolated" is generally a matter of degree' " (quoting Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (2003)). As the dissent hopefully observes, post, at 24, such an unverifiable standard is not likely to constrain an agency whose disregard for the statutory language has been so long manifested. In fact, by stating that "[i]n both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above," post, at 26, Justice Kennedy tips a wink at the agency, inviting it to try its same expansive reading again.
4 FOOTNOTES
Footnote *
The scope of the proposed rulemaking was not as narrow as Justice Stevens suggests, post, at 10, n. 4 (dissenting opinion). See 68 Fed. Reg. 1994 (2003) ("Additionally, we invite your views as to whether any other revisions are needed to the existing regulations on which waters are jurisdictional under the CWA"); id., at 1992 ("Today's [notice of proposed rulemaking] seeks public input on what, if any, revisions in light of SWANCC might be appropriate to the regulations that define 'waters of the U. S.', and today's [notice] thus would be of interest to all entities discharging to, or regulating, such waters" (emphases added)). The agencies can decide for themselves whether, as the SWANCC dissenter suggests, it was wise for them to take no action in response to SWANCC.
5 FOOTNOTES
Footnote 1
Pursuant to 33 U. S. C. §§1344(g)-(h), Michigan operates its own §404 permitting program, subject to supervision from the Army Corps.
Footnote 2
Dr. Willard did not "stud[y] the upstream drainage of these sites . . . well enough to make a statement" about whether they also performed pollutant-trapping functions. 4 Tr. 96.
Footnote 3
By contrast, we "d[id] not express any opinion" on the Corps' additional assertion of jurisdiction over "wetlands that are not adjacent to bodies of open water, see 33 CFR §323.2(a)(2) and (3) (1985)." 474 U. S., at 131-132, n. 8; see also id., at 124, n. 2 (making the same reservation). Contrary to Justice Kennedy's reading, ante, at 23-24 (opinion concurring in judgment), we were not reserving the issue of the Corps' jurisdiction over wetlands adjacent to tributaries, but only reserving the issue of the Corps' jurisdiction over truly isolated waters. A glance at the cited regulation makes this clear. Section 323.2(a)(2) refers to "[a]ll interstate waters including interstate wetlands" and §323.2(a)(3) covers "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters." See also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 163-164 (2001) (considering the validity of an application of §328.3(a)(3) (1999), which is substantively identical to §323.2(a)(3) (1985) and to §323.2(a)(5) (1978)). Wetlands adjacent to tributaries of traditionally navigable waters were covered in the 1985 regulation by other provisions of the regulation, namely a combination of §§323.2(a)(1) (covering traditionally navigable waters), (4) (covering tributaries of subsection (a)(1) waters), and (7) (covering wetlands adjacent to subsection (a)(4) waters).
Footnote 4
As The Chief Justice observes, the Corps and the EPA initially considered revising their regulations in response to SWANCC. Ante, at 1-2 (concurring opinion). The Chief Justice neglects to mention, however, that almost all of the 43 States to submit comments opposed any significant narrowing of the Corps' jurisdiction--as did roughly 99% of the 133,000 other comment submitters. See U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 14-15 (Feb. 2004), (hereinafter GAO Report) (all Internet materials as visited June 14, 2006, and available in Clerk of Court's case file); Brief for Association of State and Interstate Water Pollution Control Administrators as Amicus Curiae. In any event, the agencies' decision to abandon their rulemaking is hardly responsible for the cases at hand. The proposed rulemaking focused on isolated waters, which are covered by 33 CFR §328.3(a)(3) (1999) and which were called into question by SWANCC, rather than on wetlands adjacent to tributaries of navigable waters, which are covered by a combination of §§328.3(a)(1), (5), and (7) and which (until now) seemed obviously within the agencies' jurisdiction in light of Riverside Bayview. See 68 Fed. Reg. 1994 (2003) ("The agencies seek comment on the use
of the factors in 33 CFR 328.3(a)(3)(i)-(iii) . . . in determining
[Clean Water Act] jurisdiction over isolated, intrastate, non-navigable waters").
Footnote 5
Unsurprisingly, most Courts of Appeals to consider the scope of the Corps' jurisdiction after SWANCC have unhesitatingly concluded that this jurisdiction covers intermittent tributaries and wetlands adjacent--in the normal sense of the word--to traditionally navigable waters and their tributaries. E.g., United States v. Deaton, 332 F. 3d 698 (CA4 2003) (upholding the Corps' jurisdiction over wetlands adjacent to a ditch that might not contain consistently flowing water but did drain into another ditch that drained into a creek that drained into a navigable waterway); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526 (CA9 2001) (treating as "waters of the United States" canals that held water intermittently and connected to other tributaries of navigable waters); United States v. Rueth Development Co., 335 F. 3d 598, 604 (CA7 2003) (observing "it is clear that SWANCC did not affect the law regarding . . . adjacency" in upholding the Corps' jurisdiction over a wetland without finding that this wetland had a continuous surface connection to its adjacent tributary); Baccarat Fremont v. U. S. Army Corps of Engineers, 425 F. 3d 1150, 1156 (CA9 2005) (upholding the Corps' jurisdiction over wetlands separated by berms from traditionally navigable channels and observing that "SWANCC simply did not address the issue of jurisdiction over adjacent wetlands"); but see In re Needham, 354 F. 3d 340 (CA5 2003) (reading "waters of the United States" narrowly as used in the Oil Pollution Act of 1990).
Footnote 6
Indeed, "[t]he Corps approves virtually all section 404 permit[s]," though often requiring applicants to avoid or mitigate impacts to wetlands and other waters. GAO Report 8.
Footnote 7
According to the Sunding and Zilberman article cited by the plurality, ante, at 2, for 80% of permits the mean cost is about $29,000 (with a median cost of about $12,000). The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 63, 74 (2002) (hereinafter Sunding & Zilberman). Only for less than 20% of the permits--those for projects with the most significant impacts on wetlands--is the mean cost around $272,000 (and the median cost is $155,000). Ibid.
Of course, not every placement of fill or dredged material into the waters of the United States requires a §404 permit. Only when such fill comes from point sources--"discernible, confined and discrete conveyance[s]"--is a §404 permit needed. 33 U. S. C. §§1362(12), (14). Moreover, permits are not required for discharges from point sources engaged in, among other things, normal farming activities; maintenance of transportation structures; and construction of irrigation ditches, farm roads, forest roads, and temporary mining roads. §1344(f).
Footnote 8
Rather than defending its own antagonism to environmentalism, the plurality counters by claiming that my dissent is "policy-laden." Ante, at 28. The policy considerations that have influenced my thinking are Congress' rather than my own. In considering whether the Corps' interpretation of its jurisdiction is reasonable, I am admittedly taking into account the congressional purpose of protecting the physical, chemical, and biological integrity of our waters. See 33 U. S. C. §1251(a); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 863, 837 (1984) (considering whether the agency regulation was consistent with "the policy concerns that motivated the [Clean Air Act's] enactment").
Footnote 9
Only 3 of the 21 amici briefs filed on petitioners' behalf come even close to asking for one of the plurality's two conditions. These briefs half-argue that intermittent streams should fall outside the Corps' jurisdiction--though not for the reasons given by the plurality. See Brief for National Stone, Sand and Gravel Assn. et al. 20, n. 7; Brief for Foundation for Environmental and Economic Progress et al. 22-23; Brief for Western Coalition of Arid States 10.
Footnote 10
The plurality does suggest that "seasonal rivers" are not "necessarily exclude[d]" from the Corps' jurisdiction--and then further suggests that "streams" are "rivers." Ante, at 14, n. 5. I will not explore the semantic issues posed by the latter point. On the former point, I have difficulty understanding how a "seasonal" river could meet the plurality's test of having water present "relatively permanent[ly]." By failing to explain itself, the plurality leaves litigants without guidance as to where the line it draws between "relatively permanent" and "intermittent" lies.
Footnote 11
Indeed, in the 1977 debate over whether to restrict the scope of the Corps' regulatory power, Senator Bentsen recognized that the Corps' jurisdiction "cover[s] all waters of the United States, including small streams, ponds, isolated marshes, and intermittently flowing gullies." 4 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Senate Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 903 (1978). His proposed amendment to restrict this jurisdiction failed. Id., at 947.
Footnote 12
The plurality's reasoning to the contrary is mystifying. The plurality emphasizes that a ditch around a castle is also called a "moat" and that a navigable manmade channel is called a "canal." See ante, at 17, n. 7. On their face (and even after much head-scratching), these points have nothing to do with whether we use the word "stream" rather than "ditch" where permanently present water is concerned. Indeed, under the plurality's reasoning, we would call a "canal" a "stream" or a "river" rather than a "canal."
Moreover, we do use words like "ditch" without regard to whether water is present relatively permanently. In Jennison v. Kirk, 98 U. S. 453 (1879), for example, Justice Field used the term "ditch"--not "stream"--in describing a manmade structure that carried water year round. See also, e.g., Knoxville Water Co. v. Knoxville, 200 U. S. 22, 27 (1906) (opinion for the Court by Harlan, J.) (describing "pipes" that would continuously carry water); ante, at 20, 24 (plurality opinion) (using "channel" with reference to both intermittent and relatively permanent waters); PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 709 (1994) (describing a "tunnel" that would carry water year round); New Orleans Water-Works Co. v. Rivers, 115 U. S. 674, 683 (1885) (opinion for the Court by Harlan, J.) (describing "conduits" that would supply water for a hotel). The plurality's attempt to achieve its desired outcome by redefining terms does no credit to lexicography--let alone to justice.
Footnote 13
See, e.g., Screws v. United States, 325 U. S. 91, 131-134 (1945) (Rutledge, J., concurring in result); Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 674 (1994) (Stevens, J., concurring in part and concurring in judgment); Hamdi v. Rumsfeld, 542 U. S. 507, 553-554 (2004) (Souter, J., concurring in part, dissenting in part, and concurring in judgment).
Footnote 14
I assume that Justice Kennedy's approach will be controlling in most cases because it treats more of the Nation's waters as within the Corps' jurisdiction, but in the unlikely event that the plurality's test is met but Justice Kennedy's is not, courts should also uphold the Corps' jurisdiction. In sum, in these and future cases the United States may elect to prove jurisdiction under either test.
8
S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.
1 certiorari to the supreme judicial court of maine
No. 04-1527. Argued February 21, 2006--Decided May 15, 2006
Petitioner company (Warren) asked the Federal Energy Regulatory Commission (FERC) to renew federal licenses for five of the hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounds water, which is then run through turbines and returned to the riverbed, passing around a section of the river. Under protest, Warren applied for water quality certifications from respondent Maine Board of Environmental Protection pursuant to §401 of the Clean Water Act, which requires state approval of "any activity" "which may result in any discharge into the [Nation's] navigable waters." FERC licensed the dams subject to compliance with those certifications, which require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. After losing state administrative appeals, Warren filed suit in a state court, which rejected Warren's claim that its dams do not result in a "discharge" under §401. The State Supreme Judicial Court affirmed.
Held: Because a dam raises a potential for a discharge, §401 is triggered and state certification is required. Pp. 3-15.
(a) The Clean Water Act does not define "discharge," but provides that the term "when used without qualification includes a discharge of a pollutant, and a discharge of pollutants," 33 U. S. C. §1362(16). But "discharge" is presumably broader, else superfluous, and since it is neither defined nor a term of art, it should be construed "in accordance with its ordinary or natural meaning," FDIC v. Meyer, 510 U. S. 471, 476. When applied to water, discharge commonly means "flowing or issuing out," Webster's New International Dictionary 742. This Court has consistently intended that meaning in prior water cases, including the only case focused on §401, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, in which no one questioned that the discharge of water from a dam fell within §401's ambit. The Environmental Protection Agency and FERC have also regularly read "discharge" to cover releases from hydroelectric dams. Pp. 3-6.
(b) Warren's three arguments for avoiding this common reading are unavailing. The canon noscitur a sociis--"a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575--does not apply here. Warren claims that since "discharge" is keeping company with "discharge" defined as adding one or more pollutants, see §1362(12), discharge standing alone must also require the addition of something foreign to the water. This argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage of language this way. Warren also relies on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, but that case is not on point. It addressed §402, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Thus, that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401. Finally, the Clean Water Act's legislative history, if it means anything, goes against Warren's reading of "discharge." Pp. 6-12.
(c) Warren's arguments against reading "discharge" in its common sense also miss the forest for the trees. Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a), the "national goal" being to achieve "water quality [providing] for the protection and propagation of fish ... and ... for recreation," §1251(a)(2). To do this, the Act deals with "pollution" generally, see §1251(b), which it defines as "the man-made or man-induced alteration of the [water's] chemical, physical, biological, and radiological integrity," §1362(19). Because the alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines, changes in the river's flow, movement, and circulation fall within a State's legitimate legislative business. State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution. Reading §401 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. Pp. 12-15.
2005 ME 27, 868 A. 2d 210, affirmed.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined, and in which Scalia, J., joined as to all but Part III-C.
S. D. WARREN COMPANY, PETITIONER v. MAINE
BOARD OF ENVIRONMENTAL PROTECTION et al.
1 on writ of certiorari to the supreme judicial court
of maine
[May 15, 2006]
Justice Souter delivered the opinion of the Court.**
The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.
I
The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a "power canal," through turbines, and back to the riverbed, passing around a section of the river just below the impoundment.
It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. §799, after a review that looks to environmental issues as well as the rising demand for power, §797(e).
Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a "discharge" into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws. See Water Quality Improvement Act of 1970, §103, 84 Stat. 108. Today, this requirement can be found in §401 of the Clean Water Act, 86 Stat. 877, codified at 33 U. S. C. §1341: "Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates ... ." §1341(a)(1).
"Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section."1 §1341(d).
In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as "401 state certifications"), but it filed its application under protest, claiming that its dams do not result in any "discharge into" the river triggering application of §401.
The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. S. D. Warren Co. v. Board of Environmental Protection, 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. ___ (2005), and now affirm as well.
II
The dispute turns on the meaning of the word "discharge," the key to the state certification requirement under §401.2 The Act has no definition of the term, but provides that "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants."3 33 U. S. C. §1362(16). It does define "discharge of a pollutant" and "discharge of pollutants," as meaning "any addition of any pollutant to navigable waters from any point source." §1362(12). But "discharge" presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it "in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U. S. 471, 476 (1994).
When it applies to water, "discharge" commonly means a "flowing or issuing out," Webster's New International Dictionary 742 (2d ed. 1949); see also ibid. ("[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay"), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam's " 'multiport' structure, which will permit discharge of water from any of five levels"); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who " 'take ... water out of the stream which has been discharged from the reservoir' "); United States v. Arizona, 295 U. S. 174, 181 (1935) ("Parker Dam will intercept waters discharged at Boulder Dam").
In fact, this understanding of the word "discharge" was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington's authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this:
"There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges--the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity." Id., at 711.
The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State's §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the "discharge of water" from the dam was a discharge within the ambit of §401. Ibid. And although the Court's opinion made no mention of the dam as adding anything to the water, the majority's use of the phrase "discharge of water" drew no criticism from the dissent, which specifically noted that "[t]he term 'discharge' is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests 'a flowing or issuing out,' or 'something that is emitted.' " Id., at 725 (opinion of Thomas, J.) (quoting Webster's Ninth New Collegiate Dictionary 360 (1991)).
In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA, Water Quality Standards Handbook §7.6.3, p. 7-10 (2d ed. 1994) ("EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act"); FPL Energy Maine Hydro LLC, 111 FERC ¶61,104, P. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress "used the term 'discharge' as nothing more than a shorthand expression for 'discharge of a pollutant or pollutants' ").4 Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. ___, ___ (2006) (slip op., at 11) ("Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved"); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of "discharge" in this way confirms our understanding of the everyday sense of the term.
III
Warren makes three principal arguments for reading the term "discharge" differently from the ordinary way. We find none availing.
A
The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the "words grouped in a list should be given related meaning," Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well").
Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." 33 U. S. C. §1362(16). Warren emphasizes that the "include[d]" terms, pollutant discharges, are themselves defined to require an "addition" of pollutants to water. §1362(12). Since "discharge" pure and simple is keeping company with "discharge" defined as adding one or more pollutants, Warren says "discharge" standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.5
The problem with Warren's argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) ("[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and a
careful reading of the definitions ... is recommended.
Of particular significance [are] the words 'discharge of pollutants' ").
B
Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to "continu[e] the authority of the State ... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State." S. Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity "may" result in a discharge ("discharge" of course being without any qualifiers here), 33 U. S. C. §1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra.
Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the "discharge of any pollutant" into the navigable waters of the United States, 33 U. S. C. §1342(a). The triggering statutory term here is not the word "discharge" alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring an "addition" of a pollutant to the water. §1362(12).
The question in Miccosukee was whether a pump between a canal and an impoundment produced a "discharge of a pollutant" within the meaning of §402, see 541 U. S., at 102-103, and the Court accepted the shared view of the parties that if two identified volumes of water are "simply two parts of the same water body, pumping water from one into the other cannot constitute an 'addition' of pollutants," id., at 109. Miccosukee was thus concerned only with whether an "addition" had been made (phosphorous being the substance in issue) as required by the definition of the phrase "discharge of a pollutant"; it did not matter under §402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.6
C
Warren's third argument for avoiding the common meaning of "discharge" relies on the Act's legislative history, but we think that if the history means anything it actually goes against Warren's position. Warren suggests that the word "includes" in the definition of "discharge" should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with "thermal discharges." As Warren describes it, several Members of Congress recognized that "heat is not as harmful as what most of us view as 'pollutants,' because it dissipates quickly in most bodies of receiving waters," 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 273 (1973) (remarks of Cong. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under §402, but they also wanted to ensure that thermal discharges remained within the scope of §401 and so sought to include them expressly in the general provision covering "discharge." See id., at 1069-1070, 1071. The proposed definition read, "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge." Id., at 1071.
Of course, Congress omitted the reference to "thermal discharge," and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, §502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words "thermal discharge" from 33 U. S. C. §1362(16) and carelessly left in the word "includes." Thus, Warren argues, there is no reason to assume that describing "discharge" as including certain acts was meant to extend the reach of §401 beyond acts of the kind specifically mentioned;7 the terminology of §401 simply reflects a failed effort to narrow the scope of §402.
This is what might be called a lawyer's argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under §402. It is simply speculation, though, to say that the word "includes" was left in the description of a "discharge" by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left "thermal discharge" as an included subclass of a "discharge" under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition.
Warren's theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms "discharge" and "discharge of pollutants" deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of "discharge" because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress's motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29-30 (1997) (if "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion" (internal quotation marks omitted)).
IV
Warren's arguments against reading the word "discharge" in its common sense fail on their own terms. 8 They also miss the forest for the trees.
Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a); see also PUD No. 1, 511 U. S., at 714, the "national goal" being to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 33 U. S. C. §1251(a)(2). To do this, the Act does not stop at controlling the "addition of pollutants," but deals with "pollution" generally, see §1251(b), which Congress defined to mean "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." §1362(19).
The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams "can cause changes in the movement, flow, and circulation of a river ... caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish." Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with "immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe." Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal:
"The record in this case demonstrates that Warren's dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river." In re S. D. Warren Co., Maine Board of Environmental Protection (2003), in App. to Pet. for Cert. A-49.
Changes in the river like these fall within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns. See 33 U. S. C. §1251(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution"); §1256(a) (federal funds for state efforts to prevent pollution); see also §1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones).
State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now §401 was first proposed:
"No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements." 116 Cong. Rec. 8984 (1970).
These are the very reasons that Congress provided the States with power to enforce "any other appropriate requirement of State law," 33 U. S. C. §1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid.
Reading §401 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed.
It is so ordered.
1 FOOTNOTES
Footnote *
* Justice Scalia joins all but Part III-C of this opinion.
Footnote 1
The statutes cross-referenced go to effluent limitations and other limitations, 33 U. S. C. §§1311, 1312, standards of performance, §1316, and toxic effluent standards, §1317. As we have explained before, "state water quality standards adopted pursuant to §303 [of the Clean Water Act, 33 U. S. C. §1313,] are among the 'other limitations' with which a State may ensure compliance through the §401 certification process." PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 713 (1994).
Footnote 2
No one disputes that the Presumpscot River is a navigable water of the United States.
Footnote 3
The term "pollutant" is defined in the Act to mean "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U. S. C. §1362(6).
Footnote 4
Warren relies on a document from the EPA as a counterexample of the EPA's position in this regard. See Memorandum from Ann R. Klee, EPA General Counsel et al., to Regional Administrators, regarding "Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers" (Aug. 5, 2005), available at (as visited Apr. 13, 2006, and available in Clerk of Court's case file). The memorandum does not help Warren, however; it interprets §402 of the Clean Water Act, not §401, and construes the statutory phrase "discharge of a pollutant," which, as explained below, implies a meaning different under the statute from the word "discharge" used alone. The memorandum, in fact, declares that "[i]t does not address any ... terms under the statute other than 'addition.' " Id., at 18.
Footnote 5
We note that the Supreme Judicial Court of Maine accepted the assertion that "[a]n 'addition' is the fundamental characteristic of any discharge." 2005 Me 27, ¶11, 868 A. 2d 210, 215. It then held that Warren's dams add to the Presumpscot River because the water "los[es its] status as waters of the United States" when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A. 2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 69 (1913) ("[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable"). Thus, though we affirm the Maine judgment, we do so on different reasoning.
Footnote 6
The fact that the parties in Miccosukee conceded that the water being pumped was polluted does not transform the Court's analysis from one centered on the word "addition" to one centered on the word "discharge." Before Miccosukee, one could have argued that transferring polluted water from a canal to a connected impoundment constituted an "addition." Miccosukee is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a "discharge."
Likewise, we are not persuaded by Warren's claim that the word "into" somehow changes the meaning of the word "discharge" so as to require an addition. See Reply Brief for Petitioner 1-2 ("However one might read the lone word 'discharge' by itself, the complete statutory phrase 'discharge into the navigable waters' entails the introduction of something into the waters"). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition "into" was used without connoting an addition in the Miccosukee analogy cited by Warren. See 541 U. S., at 110 ("[I]f one takes a ladle of soup from a pot ... and pours it back into the pot, one has not 'added' soup or anything else to the pot" (internal quotation marks and brackets omitted)).
Footnote 7
Warren is hesitant to follow its own logic to completion by simply claiming that §401 covers nothing but what §502(16) mentions, the discharge of a pollutant or pollutants.
Footnote 8
Warren briefly makes another argument for disregarding the plain meaning of the word "discharge," relying on §511(c)(2) of the Clean Water Act, 33 U. S. C. §1371(c)(2). This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4321 et seq. NEPA "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Department of Transportation v. Public Citizen, 541 U. S. 752, 756-757 (2004). Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency "authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant" to review "any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§401] of this title." 33 U. S. C. §1371(c)(2). Warren argues that reading §401 to cover discharges generally would preclude duplicative NEPA review of certifications involving pollutant discharges, but allow such review of those involving nonpollutant discharges.
But Warren overlooks the fact that "discharge of a pollutant" is used in §511(c)(2) in the course of identifying the agency, not the activity to be certified. Whether a §401 certification involves an activity that discharges pollutants or one that simply discharges, FERC (as an agency that may be described, always, as one with "author[ity] to license or permit the conduct of any activity which may result in the discharge of a pollutant," ibid.) may not review it. Thus, nothing in §511(c)(2) is disturbed by our holding that hydroelectric dams require §401 state certifications. It is still the case that, when a State has issued a certification covering a discharge that adds no pollutant, no federal agency will be deemed to have authority under NEPA to "review" any limitations or the adequacy of the §401 certification.
9
UNITED STATES v. ATLANTIC RESEARCH CORP.
1 certiorari to the united states court of appeals for the eighth circuit
No. 06-562. Argued April 23, 2007--Decided June 11, 2007
Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 allow private parties to recover expenses associated with cleaning up contaminated sites. Section 107(a) defines four categories of potentially responsible parties (PRPs) and makes them liable for, among other things, "(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan" and "(B) any other necessary costs of response incurred by any other person consistent with [such] plan," §§107(a)(4)(A)-(B). Originally, some courts interpreted §107(a)(4)(B) as providing a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. However, after the enactment of §113(f), which authorizes one PRP to sue another for contribution, many courts held it to be the exclusive remedy for PRPs. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, this Court held that a private party could seek contribution under §113(f) only after being sued under §106 or §107(a).
After respondent Atlantic Research cleaned up a Government site it leased and contaminated while doing Government work, it sued the Government to recover some of its costs under, as relevant here, §107(a). The District Court dismissed the case, but the Eighth Circuit reversed, holding that §113(f) does not provide the exclusive remedy for recovering cleanup costs and that §107(a)(4)(B) provided a cause of action to any person other than those permitted to sue under §107(a)(4)(A).
Held: Because §107(a)(4)(B)'s plain terms allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. Pp. 4-11.
(a) Applying the maxim that statutes must "be read as a whole," King v. St. Vincent's Hospital, 502 U. S. 215, 221, subparagraph (B)'s language can be understood only with reference to subparagraph (A). The provisions are adjacent and have similar structures, and the text denotes a relationship between them. Subparagraph (B)'s phrase "other necessary costs" refers to and differentiates the relevant costs from those listed in subparagraph (A). Thus, it is natural to read the phrase "any other person" by referring to the immediately preceding subparagraph (A). Accepting the Government's interpretation--that "any other person" refers only to a person not identified as a PRP in §§107(a)(1)-(4)--would destroy the symmetry of subparagraphs (A) and (B) and render subparagraph (B) internally confusing. Moreover, because the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs, accepting that interpretation would reduce the number of potential plaintiffs to almost zero, rendering subparagraph (B) a dead letter. Pp. 4-7.
(b) Contrary to the Government's argument, this interpretation will not create friction between §107(a) and §113(f). Their two clearly distinct remedies complement each other: §113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a), while §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Thus, at least in the case of reimbursement, a PRP cannot choose §107(a)'s longer statute of limitations for recovery actions over §113(f)'s shorter one for contribution claims. Similarly, a PRP could not avoid §113(f)'s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability under §107(a). That choice of remedies simply does not exist, and in any event, a defendant PRP in a §107(a) suit could blunt any such distribution by filing a §113(f) counterclaim. Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate §113(f)(2), which prohibits §113(f) contribution claims against "[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement ... ." Although that settlement bar does not by its terms protect against §107(a) cost-recovery liability, a district court applying traditional equity rules would undoubtedly consider any prior settlement in the liability calculus; the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed costs incurred by another party; and settlement carries the inherent benefit of finally resolving liability as to the United States or a State. Pp. 7-11.
459 F. 3d 827, affirmed.
Thomas, J., delivered the opinion for a unanimous Court.
UNITED STATES, PETITIONER v. ATLANTIC
RESEARCH CORPORATION
1 on writ of certiorari to the united states court of
appeals for the eighth circuit
[June 11, 2007]
Justice Thomas delivered the opinion of the Court.
Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)--§§107(a) and 113(f)--allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)-(4), with a cause of action to recover costs from other PRPs. We hold that it does.
I
1 A
Courts have frequently grappled with whether and how PRPs may recoup CERCLA-related costs from other PRPs. The questions lie at the intersection of two statutory provisions--CERCLA §§107(a) and 113(f). Section 107(a) defines four categories of PRPs, 94 Stat. 2781, 42 U. S. C. §§9607(a)(1)-(4), and makes them liable for, among other things:
"(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and]
"(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan." §9607(a)(4)(A)-(B).
Enacted as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, §113(f) authorizes one PRP to sue another for contribution in certain circumstances. 42 U. S. C. §9613(f).1
Prior to the advent of §113(f)'s express contribution right, some courts held that §107(a)(4)(B) provided a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. See Cooper Industries, supra, at 161-162 (collecting cases); Key Tronic Corp. v. United States, 511 U. S. 809, 816, n. 7 (1994) same. After SARA's enactment, however, some Courts of Appeals believed it necessary to "direc[t] traffic between" §107(a) and §113(f). 459 F. 3d 827, 832 (CA8 2006) (case below). As a result, many Courts of Appeals held that §113(f) was the exclusive remedy for PRPs. See Cooper Industries, supra, at 169 (collecting cases). But as courts prevented PRPs from suing under §107(a), they expanded §113(f) to allow PRPs to seek "contribution" even in the absence of a suit under §106 or §107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc).
In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under §106 or §107(a). 543 U. S., at 161. This narrower interpretation of §113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under §107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168. After revisiting the issue, some courts have permitted §107(a) actions by PRPs. See Consolidated Edison Co. of N. Y. v. UGI Utilities, Inc., 423 F. 3d 90 (CA2 2005); Metropolitan Water Reclamation Dist. of Greater Chicago v. North American Galvanizing & Coatings, Inc., 473 F. 3d 824 (CA7 2007). However, at least one court continues to hold that §113(f) provides the exclusive cause of action available to PRPs. E. I. Dupont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006). Today, we resolve this issue.
B
In this case, respondent Atlantic Research leased property at the Shumaker Naval Ammunition Depot, a facility operated by the Department of Defense. At the site, Atlantic Research retrofitted rocket motors for petitioner United States. Using a high-pressure water spray, Atlantic Research removed pieces of propellant from the motors. It then burned the propellant pieces. Some of the resultant wastewater and burned fuel contaminated soil and groundwater at the site.
Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §107(a) and §113(f). After our decision in Cooper Industries foreclosed relief under §113(f), Atlantic Research amended its complaint to seek relief under §107(a) and federal common law. The United States moved to dismiss, arguing that §107(a) does not allow PRPs (such as Atlantic Research) to recover costs. The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003).
The Court of Appeals for the Eighth Circuit reversed. Recognizing that Cooper Industries undermined the reasoning of its prior precedent, 459 F. 3d, at 830, n. 4, the Court of Appeals joined the Second and Seventh Circuits in holding that §113(f) does not provide "the exclusive route by which [PRPs] may recover cleanup costs." Id., at 834 (citing Consolidated Edison Co., supra). The court reasoned that §107(a)(4)(B) authorized suit by any person other than the persons permitted to sue under §107(a)(4)(A). 459 F. 3d, at 835. Accordingly, it held that §107(a)(4)(B) provides a cause of action to Atlantic Research. To prevent perceived conflict between §107(a)(4)(B) and §113(f)(1), the Court of Appeals reasoned that PRPs that "have been subject to §§106 or 107 enforcement actions are still required to use §113, thereby ensuring its continued vitality." Id., at 836-837. We granted certiorari, 549 U. S. ___ (2007), and now affirm.
II
1 A
The parties' dispute centers on what "other person[s]" may sue under §107(a)(4)(B). The Government argues that "any other person" refers to any person not identified as a PRP in §§107(a)(1)-(4).2 In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research's claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraph (1)-(4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe--the persons listed in subparagraph (A). We agree with Atlantic
Research.
Statutes must "be read as a whole." King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991). Applying that maxim, the language of suparagraph (B) can be understood only with reference to subparagraph (A). The provisions are adjacent and have remarkably similar structures. Each concerns certain costs that have been incurred by certain entities and that bear a specified relationship to the national contingency plan.3 Bolstering the structural link, the text also denotes a relationship between the two provisions. By using the phrase "other necessary costs," subparagraph (B) refers to and differentiates the relevant costs from those listed in subparagraph (A).
In light of the relationship between the subparagraph, it is natural to read the phrase "any other person" by referring to the immediately preceding subparagraph (A), which permits suit only by the United States, a State, or an Indian tribe. The phrase "any other person" therefore means any person other than those three. See 42 U. S. C. §9601(21) (defining "person" to include the United States and the various States). Consequently, the plain language of subparagraph (B) authorizes cost-recovery actions by any private party, including PRPs. See Key Tronic, 511 U. S., at 818 (stating in dictum that §107 "impliedly authorizes private parties to recover cleanup costs from other PRP[s]" (emphasis added)).
The Government's interpretation makes little textual sense. In subparagraph (B), the phrase "any other necessary costs" and the phrase "any other person" both refer to antecedents--"costs" and "person[s]"--located in some previous statutory provision. Although "any other necessary costs" clearly references the costs in subparagraph (A), the Government would inexplicably interpret "any other person" to refer not to the persons listed in subparagraph (A) but to the persons listed as PRPs in paragraphs (1)-(4). Nothing in the text of §107(a)(4)(B) suggests an intent to refer to antecedents located in two different statutory provisions. Reading the statute in the manner suggested by the Government would destroy the symmetry of §§107(a)(4)(A) and (B) and render subparagraph (B) internally confusing.
Moreover, the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs. Hence, if PRPs do not qualify as "any other person" for purposes of §107(a)(4)(B), it is unclear what private party would. The Government posits that §107(a)(4)(B) authorizes relief for "innocent" private parties--for instance, a landowner whose land has been contaminated by another. But even parties not responsible for contamination may fall within the broad definitions of PRPs in §§107(a)(1)-(4). See 42 U. S. C. §9607(a)(1) (listing "the owner and operator of a ... facility" as a PRP); see also United States v. Alcan Aluminum Corp., 315 F. 3d 179, 184 (CA2 2003) ("CERCLA §9607 is a strict liability statute"). The Government's reading of the text logically precludes all PRPs, innocent or not, from recovering cleanup costs. Accordingly, accepting the Government's interpretation would reduce the number of potential plaintiffs to almost zero, rendering §107(a)(4)(B) a dead letter.4 See Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911) ("We must have regard to all the words used by Congress, and as far as possible give effect to them").
According to the Government, our interpretation suffers from the same infirmity because it causes the phrase "any other person" to duplicate work done by other text. In the Government's view, the phrase "any other necessary costs" "already precludes governmental entities from recovering under" §107(a)(4)(B). Brief for United States 20. Even assuming the Government is correct, it does not alter our conclusion. The phrase "any other person" performs a significant function simply by clarifying that subparagraph (B) excludes the persons enumerated in subparagraph (A). In any event, our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity.
B
The Government also argues that our interpretation will create friction between §107(a) and §113(f), the very harm courts of appeals have previously tried to avoid. In particular, the Government maintains that our interpretation, by offering PRPs a choice between §107(a) and §113(f), effectively allows PRPs to circumvent §113(f)'s shorter statute of limitations. See 42 U. S. C. §§9613(g)(2)-(3). Furthermore, the Government argues, PRPs will eschew equitable apportionment under §113(f) in favor of joint and several liability under §107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in §113(f)(2).
We have previously recognized that §§107(a) and 113(f) provide two "clearly distinct" remedies. Cooper Industries, 543 U. S., at 163, n. 3. "CERCLA provide[s] for a right to cost recovery in certain circumstances, §107(a), and separate rights to contribution in other circumstances, §§113(f)(1), 113(f)(3)(B)." Id., at 163 (emphases added). The Government, however, uses the word "contribution" as if it were synonymous with any apportionment of expenses among PRPs. Brief for United States 33, n. 14 ("Contribution is merely a form of cost recovery, not a wholly independent type of relief"); see also, e.g., Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301 (CA9 1997) ("Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution"). This imprecise usage confuses the complementary yet distinct nature of the rights established in §§107(a) and 113(f).
Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the "tortfeasor's right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault." Black's Law Dictionary 353 (8th ed. 1999). Nothing in §113(f) suggests that Congress used the term "contribution" in anything other than this traditional sense. The statute authorizes a PRP to seek contribution "during or following" a suit under §106 or §107(a). 42 U. S. C. §9613(f)(1).5 Thus, §113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP's right to contribution under §113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties.
By contrast, §107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under §107(a) without any establishment of liability to a third party. Moreover, §107(a) permits a PRP to recover only the costs it has "incurred" in cleaning up a site. 42 U. S. C. §9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.
Accordingly, the remedies available in §§107(a) and 113(f) complement each other by providing causes of action "to persons in different procedural circumstances." Consolidated Edison, 423 F. 3d, at 99; see also E. I. Dupont de Nemours, 460 F. 3d, at 548 (Sloviter, J., dissenting). Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a). And §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue §113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under §107(a). As a result, though eligible to seek contribution under §113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under §107(a). Thus, at least in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for §113(f) contribution claims.6
For similar reasons, a PRP could not avoid §113(f)'s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under §107(a).7 The choice of remedies simply does not exist. In any event, a defendant PRP in such a §107(a) suit could blunt any inequitable distribution of costs by filing a §113(f) counterclaim. 459 F. 3d, at 835; see also Consolidated Edison, supra, at 100, n. 9 (collecting cases). Resolution of a §113(f) counter-claim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the §107(a) action. 42 U. S. C. §9613(f)(a) ("In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate").
Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate the settlement bar set forth in §113(f)(2). That provision prohibits §113(f) contribution claims against "[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement ... ." 42 U. S. C. §9613(f)(2). The settlement bar does not by its terms protect against cost-recovery liability under §107(a). For several reasons, we doubt this supposed loophole would discourage settlement. First, as stated above, a defendant PRP may trigger equitable apportionment by filing a §113(f) counterclaim. A district court applying traditional rules of equity would undoubtedly consider any prior settlement as part of the liability calculus. Cf. Restatement (Second) of Torts §886A(2), p. 337 (1977) ("No tortfeasor can be required to make contribution beyond his own equitable share of the liability"). Second, the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed the costs incurred by another party. Third, settlement carries the inherent benefit of finally resolving liability as to the United States or a State.8
III
Because the plain terms of §107(a)(4)(B) allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
1 FOOTNOTES
Footnote 1
Section 113(f)(1) permits private parties to seek contribution during or following a civil action under §106 or §107(a). 42 U. S. C. §9613(f)(1). Section 113(f)(3)(B) permits private parties to seek contribution after they have settled their liability with the Government. §9613(f)(3)(B).
Footnote 2
CERCLA §107(a) lists four broad categories of persons as PRPs, by definition liable to other persons for various costs:
"(1) the owner and operator of a vessel or a facility,
"(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
"(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
"(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for [various costs]." 42 U. S. C. §§9607(a)(1)-(4).
Footnote 3
"The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency ... ." Cooper Industries Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, n. 2 (2004) (citing 40 CFR pt. 300 (2004)).
Footnote 4
Congress amended the statute in 2002 to exempt some bona fide prospective purchasers (BFPPs) from liability under §107(a). See 42 U. S. C. §9607(r)(1) (2000 ed., Supp. IV). The Government claims that these persons are non-PRPs and therefore qualify as "any other person" under its interpretation of §107(a)(4)(B). Prior to 2002, however, the statute made this small set of persons liable as PRPs. Accordingly, even if BFPPs now give some life to the Government's interpretation of §107(a)(4)(B), it would be implausible at best to conclude that §107(a)(4)(B) lay dormant until the enactment of §107(r)(1) in 2002.
Footnote 5
Similarly, §113(f)(3)(B) permits a PRP to seek contribution after it "has resolved its liability to the United States or a State ... in an administrative or judicially approved settlement ... ." 42 U. S. C. §9613(f)(3)(B).
Footnote 6
We do not suggest that §§107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U. S. 809, 816 (1994) (stating the statutes provide "similar and somewhat overlapping remed[ies]"). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under §106 or §107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F. 3d 96, 97 (CA1 1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under §113(f), §107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of §107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under §113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government's argument.
Footnote 7
We assume without deciding that §107(a) provides for joint and several liability.
Footnote 8
Because §107(a) expressly permits PRPs to seek cost recovery, we need not address the alternative holding of the Court of Appeals that §107(a) contains an additional implied right to contribution for PRPs who are not eligible for relief under §113(f). Cf. Cooper Industries, 543 U. S., at 171 (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981)).
10
VIRGINIA v. MARYLAND
1 on exceptions to report of special master
No. 129, Orig. Argued October 7, 2003--Decided December 9, 2003
Maryland and Virginia have long disputed control of the Potomac River (River). Of particular relevance here, Article Seventh of the 1785 Compact between those States provided: "The citizens of each state ... shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." Because the 1785 Compact did not determine the boundary line between the two States, they submitted that question to an arbitration panel, which ultimately issued a binding award (hereinafter Black-Jenkins Award or Award) placing the boundary at the low-water mark on the River's Virginia shore. Although Maryland was thus granted ownership of the entire riverbed, Article Fourth of the Award further provided: "Virginia ... is entitled not only to full dominion over the soil to [its shore's] low-water mark ... , but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland." Congress approved both the 1785 Compact and the Black-Jenkins Award pursuant to the Compact Clause of the Constitution. In 1933, Maryland established a permitting system for water withdrawal and waterway construction within her territory. For approximately 40 years, she issued, without objection, each of the numerous such permits requested by Virginia entities. The Maryland Department of the Environment (MDE) first denied such a permit when, in 1996, the Fairfax County, Va., Water Authority sought permission to construct a water intake structure, which would extend 725 feet from the Virginia shore above the River's tidal reach and was designed to improve water quality for county residents. Maryland officials opposed the project on the ground that it would harm Maryland's interests by facilitating urban sprawl in Virginia, and the MDE held that Virginia had not demonstrated a sufficient need for the offshore intake. Virginia pursued MDE administrative appeals for more than two years, arguing unsuccessfully at each stage that she was entitled to build the water intake structure under the 1785 Compact and the Black-Jenkins Award. Finally, Virginia brought this original action seeking a declaratory judgment that Maryland may not require Virginia, her governmental subdivisions, or her citizens to obtain a permit in order to construct improvements appurtenant to her shore or to withdraw water from the River. The Court referred the action to a Special Master, who issued a Report that, inter alia, concluded that the 1785 Compact and the Black-Jenkins Award gave Virginia the right to use the River beyond the low-water mark as necessary to the full enjoyment of her riparian rights; found no support in either of those documents for Maryland's claimed sovereign authority over Virginia's exercise of her riparian rights; rejected Maryland's argument that Virginia had lost her rights of waterway construction and water withdrawal by acquiescing in Maryland's regulation of activities on the River; and recommended that the relief sought by Virginia be granted. Maryland filed exceptions to the Report.
Held:
1. The Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, subject to the constraints of federal common law and the Award. Article Fourth of the Award and Article Seventh of the 1785 Compact govern this controversy. The plain language of the latter grants the "citizens of each state" "full property" rights in the "shores of Potowmack river" and the "privilege" of building "improvements" from the shore. The notable absence of any grant or recognition of sovereign authority to regulate the exercise of this "privilege" of the "citizens of each state" contrasts with Article Seventh's second clause, which recognized a right held by the "citizens" of each State to fish in the River, and with Article Eighth, which subjects that right to mutually agreed-upon regulation by the States. These differing approaches to rights indicate that the 1785 Compact's drafters carefully delineated the instances in which the citizens of one State would be subjected to the regulatory authority of the other. Other portions of the 1785 Compact also reflect this design. If any inference is to be drawn from Article Seventh's silence on the subject of regulatory authority, it is that each State was left to regulate the activities of her own citizens. The Court rejects the historical premise underlying the argument that Article Seventh's regulatory silence must be read in Maryland's favor because her sovereignty over the River was "well-settled" by the time the 1785 Compact was drafted. The Court's own cases recognize that the scope of Maryland's sovereignty over the River was in dispute both before and after the 1785 Compact. See, e.g., Morris v. United States, 174 U. S. 196, 224. The mere existence of the 1785 Compact further belies Maryland's argument in that the compact sought "to regulate and settle the jurisdiction and navigation" of the River, 1785-1786 Md. Laws ch. 1 (preamble), an endeavor that would hardly have been required if, as Maryland claims, her well-settled sovereignty gave her exclusive authority to regulate all activity on the River. Accordingly, the Court reads Article Seventh simply to guarantee that each State's citizens would retain the right to build wharves and improvements regardless of which State ultimately was determined to be sovereign over the River. That would not be decided until the 1877 Black-Jenkins Award gave such sovereignty to Maryland. Unlike the 1785 Compact's Article Seventh, which concerned the rights of citizens, the plain language of the Award's Article Fourth gives Virginia, as a sovereign State, the right to use the River beyond the low-water mark. Nothing in Article Fourth suggests that Virginia's rights are subject to Maryland's regulation. Indeed, that Article limits Virginia's riparian rights only by Maryland's right of "proper use" and the proviso that Virginia not "imped[e] ... navigation," limitations that hardly would have been necessary if Maryland retained the authority to regulate Virginia's actions. Maryland's argument to the contrary is rejected, since the States would hardly have submitted to binding arbitration "for the purpose of ascertaining and fixing the boundary" between them if that boundary was already well settled. Act of Mar. 3, 1879, ch. 196, 20 Stat. 481 (preamble). Indeed, the Black-Jenkins arbitrators' opinion dispels any doubt that sovereignty was in dispute, see, e.g., App. to Report, p. D-2, and confirms that Virginia's Article Fourth rights are sovereign rights not subject to Maryland's regulation, see id., at D-18 to D-19. Maryland's necessary concession that Virginia owns the soil to the low-water mark must also doom her claim that Virginia does not possess riparian rights to construct improvements beyond that mark and otherwise make use of the River's water. The Court rejects Maryland's remaining arguments that the Award merely confirmed the private property rights enjoyed by Virginia citizens under the 1785 Compact's Article Seventh and the common law, which rights are in turn subject to Maryland's regulation as sovereign over the River; that the Award could not have elevated the 1785 Compact's private property rights to sovereign rights; and that the requirement under the Award's Article Fourth that Virginia exercise her riparian rights on the River "without impeding the navigation or otherwise interfering with the proper use of it by Maryland" (emphasis added) indicates Maryland's continuing regulatory authority over Virginia's exercise of her riparian rights. Also rejected is Justice Kennedy's conclusion that, because the Black-Jenkins Opinion rested Virginia's prescriptive riparian rights solely on Maryland's assent to the riparian rights granted private citizens in the 1785 Compact, Maryland may regulate Virginia's right to use the River, so long as Virginia is not excluded from the River altogether. Pp. 7-18.
2. Virginia did not lose her sovereign riparian rights by acquiescing in Maryland's regulation of her water withdrawal and waterway construction activities. To succeed in her acquiescence defense, Maryland must show that Virginia "failed to protest" her assertion of sovereign authority over waterway construction and water withdrawal. New Jersey v. New York, 523 U. S. 767, 807. Maryland has not carried her burden. As the Special Master found, Virginia vigorously protested Maryland's asserted authority during the negotiations that led to the passage of §181 of the Water Resources Development Act of 1976, which required those States to enter into an agreement with the Secretary of the Army apportioning the River's waters during low-flow periods. Section 181 and the ensuing Low Flow Allocation Agreement are conclusive evidence that, far from acquiescing in Maryland's regulation, Virginia explicitly asserted her sovereign riparian rights. Pp. 18-21.
Maryland's exceptions overruled; relief sought by Virginia granted; and Special Master's proposed decree entered.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Kennedy, J., filed a dissenting opinion, in which Stevens, J., joined.
COMMONWEALTH OF VIRGINIA, PLAINTIFF v. STATE OF MARYLAND
1 on bill of complaint
[December 9, 2003]
Chief Justice Rehnquist delivered the opinion of the Court.
Invoking this Court's original jurisdiction, the Commonwealth of Virginia seeks a declaration that it has a right to withdraw water from the Potomac River and to construct improvements appurtenant to the Virginia shore free from regulation by the State of Maryland. We granted Virginia leave to file a complaint, 530 U. S. 1201 (2000), and referred the action to a Special Master, 531 U. S. 922 (2001). The Special Master filed a Report recommending that we grant the relief sought by Virginia. Maryland has filed exceptions to that Report.
Rising in the Appalachian Highlands of Maryland and West Virginia, the Potomac River (River) flows nearly 400 miles before emptying into Chesapeake Bay. For the lower part of its course, it forms the boundary between Maryland and the District of Columbia on the north, and West Virginia and Virginia on the south.
Control of the River has been disputed for nearly 400 years. In the 17th century, both Maryland and Virginia laid claim to the River pursuant to conflicting royal charters issued by different British monarchs. See Maryland v. West Virginia, 217 U. S. 1, 24-29 (1910); Morris v. United States, 174 U. S. 196, 223-225 (1899).
Virginia traced her claim primarily to the 1609 charter issued by King James I to the London Company, and to a 1688 patent for Virginia's Northern Neck, issued by King James II to Lord Thomas Culpeper. West Virginia, supra, at 28-29; Morris, supra, at 223-224. Both the 1609 charter and the 1688 patent included the entire Potomac River. Id., at 223. Maryland relied on the charter of 1632 from King Charles I to Lord Baltimore, which also included the Potomac River, although the precise scope of the grant remained in dispute. West Virginia, supra, at 20, 24-25; Morris, supra, at 223-225. In her Constitution of 1776, Virginia ceded ownership of the River to Maryland to the extent the River was included in Maryland's 1632 charter. Va. Const., Art. XXI, reprinted in 9 W. Hening's Statutes at Large 118 (1821). Importantly for our purposes, Virginia specifically excepted from her cession "the free navigation and use of the rivers Potowmack and Pocomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." Ibid. In October of that same year, Maryland passed a resolution at a convention of her constitutional delegates that rejected the reservation in Virginia's Constitution. Proceedings of the Conventions of the Province of Maryland, held at the City of Annapolis, in 1774, 1775, 1776, pp. 292-293 (J. Lucas & E. Deaver eds. 1836). The unanimous convention asserted Maryland's "sole and exclusive jurisdiction" over the River. Ibid.
In the early years of the Republic, "great inconveniences were experienced by citizens of both Maryland and Virginia from the want of established and recognized regulations between those States respecting the jurisdiction and navigation of the river Potomac." Wharton v. Wise, 153 U. S. 155, 162 (1894). To address these problems, Maryland and Virginia appointed commissioners, who, at the invitation of George Washington, met at Mount Vernon in March 1785.1 Id., at 163; 2 The Diaries of George Washington 1748-1799, p. 354 (J. Fitzpatrick ed. 1925). The Mount Vernon conference produced a binding compact (1785 Compact) between the States, which was subsequently ratified by the Maryland and Virginia Legislatures. Wharton, supra, at 165-166; 1785-1786 Md. Laws ch. 1; 1785 Va. Acts ch. 17. The 1785 Compact's 13 articles provided, inter alia, that the River "shall be considered as a common highway, for the purpose of navigation and commerce to the citizens of Virginia and Maryland" (Article Sixth); that all laws regulating fishing and navigation "shall be made with the mutual consent and approbation of both states" (Article Eighth); and that jurisdiction over criminal offenses shall be determined based on the citizenship of the offender and the victim (Article Tenth). Va. Code Ann. Compacts App., pp. 342-343. Of particular relevance to this case, Article Seventh provided:
"The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." Ibid.
Although the 1785 Compact resolved many important navigational and jurisdictional issues, it did not determine the boundary line between the States, an issue that was "left ... open to long continued disputes." Marine Railway & Coal Co. v. United States, 257 U. S. 47, 64 (1921); Morris, supra, at 224; Rhode Island v. Massachusetts, 12 Pet. 657, 724 (1838). In 1874, Virginia and Maryland submitted the boundary dispute to binding arbitration before a panel of "eminent lawyers" composed of Jeremiah S. Black, James B. Beck, and Charles J. Jenkins. Maryland v. West Virginia, 217 U. S. 577, 579 (1910). On January 16, 1877, the arbitrators issued their award (hereinafter Black-Jenkins Award or Award), placing the boundary at the low-water mark on the Virginia shore of the Potomac.2 Although Maryland was thus granted ownership of the entire bed of the River, Article Fourth of the Award further provided:
"Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." Act of Mar. 3, 1879, ch. 196, 20 Stat. 482 (internal quotation marks omitted).
The Black-Jenkins Award was ratified by the Legislatures of Maryland and Virginia, 1878 Md. Laws ch. 274; 1878 Va. Acts ch. 246, and approved by the United States Congress, pursuant to the Compact Clause of the Constitution, Art. I, §10, cl. 3; Act of Mar. 3, 1879, ch. 196, 20 Stat. 481. See also Wharton, supra, at 172-173. We held that when Congress approved the Black-Jenkins Award it implicitly consented to the 1785 Compact as well. Id., at 173.3
In 1933, Maryland established a permitting system for water withdrawal and waterway construction taking place within Maryland territory. 1933 Md. Laws ch. 526, §§4, 5 (current version codified at Md. Envir. Code Ann. §5-501 et seq. (1996)). In 1956, Fairfax County became the first Virginia municipal corporation to apply for a water withdrawal permit, seeking leave to withdraw up to 15 million gallons of water per day. App. to Exceptions of Maryland to Report of Special Master 196. Maryland granted that permit in 1957. Between 1957 and 1996, Maryland issued, without objection, at least 29 water withdrawal permits to Virginia entities. Id., at 57, 197-205. Since 1968, it has likewise issued numerous waterway construction permits to Virginia entities. Id., at 276-280.
In 1996, the Fairfax County Water Authority (FCWA) sought permits from Maryland for construction of a water intake structure extending 725 feet from the Virginia shore above the tidal reach of the Potomac River. The structure was designed to improve water quality for Fairfax County residents. Several Maryland officials opposed Virginia's construction proposal, arguing that it would harm Maryland's interests by facilitating urban sprawl in Virginia. In late 1997, the Maryland Department of the Environment (MDE) refused to issue the permit, holding that Virginia had not demonstrated a sufficient need for the offshore intake. This marked the first time Maryland had denied such a permit to a Virginia entity. Virginia pursued MDE administrative appeals for more than two years, arguing at each stage that it was entitled to build the water intake structure under the 1785 Compact and the Black-Jenkins Award. In February 2000, Virginia, still lacking a permit, sought leave to file a bill of complaint in this Court, which we granted on March 30, 2000.4 Ultimately, the MDE's "Final Decision Maker" determined that Virginia had demonstrated a sufficient need for the project. In 2001, Maryland finally issued the permit to FCWA, but only after the Maryland Legislature attached a condition to the permit requiring FCWA to place a permanent flow restrictor on the intake pipe to limit the amount of water that could be withdrawn from the River, 2000 Md. Laws ch. 557, §1(b)(2)(ii). See Lodging Accompanying Reply by Virginia to Maryland's Exceptions to Report of Special Master L-336 to L-339 (hereinafter Va. Lodging) (permit issued to FCWA).
In October 2000, while Virginia's permit request was pending, we referred Virginia's bill of complaint to Special Master Ralph I. Lancaster, Jr. Virginia sought a declaratory judgment that Maryland may not require Virginia, her governmental subdivisions, or her citizens to obtain a permit in order to construct improvements appurtenant to her shore or to withdraw water from the River. Maryland did not dispute that Virginia had rights to withdraw water and construct improvements under the 1785 Compact and the Black-Jenkins Award. Report of the Special Master 12 (hereinafter Report). Rather, Maryland asserted that, as sovereign over the River to the low-water mark, it was entitled to regulate Virginia's exercise of these rights.5 Ibid. Maryland further argued that even if the 1785 Compact and the Award granted Virginia unrestricted rights of waterway construction and water withdrawal, Virginia lost those rights by acquiescing in Maryland's regulation of activities on the Potomac.
The Special Master recommended that we grant the relief sought by Virginia. Interpreting the 1785 Compact and the Black-Jenkins Award, he concluded that these two documents not only gave citizens of Virginia the right to construct improvements from their riparian property into the River, but gave the Commonwealth of Virginia the right to use the River beyond the low-water mark as necessary to the full enjoyment of her riparian rights. The Special Master rejected Maryland's claimed authority to regulate Virginia's exercise of her rights, finding no support for that proposition in either the 1785 Compact or the Award. Finally, the Special Master rejected Maryland's defense of acquiescence by Virginia.
Maryland filed exceptions to the Report of the Special Master. We now overrule those exceptions.
Virginia and Maryland agree that Article Seventh of the 1785 Compact and Article Fourth of the Black-Jenkins Award govern the instant controversy. Determining whether Virginia's rights are subject to Maryland's regulatory authority obviously requires resort to those documents. We interpret a congressionally approved interstate compact "[j]ust as if [we] were addressing a federal statute." New Jersey v. New York, 523 U. S. 767, 811 (1998); see also ibid. ("[C]ongressional consent 'transforms an interstate compact ... into a law of the United States' " (quoting Cuyler v. Adams, 449 U. S. 433, 438 (1981))). Article Seventh of the 1785 Compact provides:
" The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." Va. Code Ann. Compacts App., pp. 342-343.
The plain language of Article Seventh thus grants to the "citizens of each state" "full property" rights in the "shores of Potowmack river" and the "privilege" of building "improvements" from the shore. Notably absent is any grant or recognition of sovereign authority to regulate the exercise of this "privilege" of the "citizens of each state." The lack of such a grant of regulatory authority in the first clause of Article Seventh contrasts with the second clause of Article Seventh and Article Eighth, which also recognized a right held by the "citizens" of each State:
"[T]he right of fishing in the river shall be common to, and equally enjoyed by, the citizens of both states ... . Eighth. All laws and regulations which may be necessary for the preservation of fish ... shall be made with the mutual consent and approbation of both states." Id., at 343.
Thus, while the Article Seventh right to build improvements was not explicitly subjected to any sovereign regulatory authority, the fishing right in the same article was subjected to mutually agreed-upon regulation. We agree with Virginia that these differing approaches to rights contained in the same article of the 1785 Compact indicate that the drafters carefully delineated the instances in which the citizens of one State would be subject to the regulatory authority of the other. Other portions of the 1785 Compact reflect this design. See Article Fourth (providing that certain vessels "may enter and trade in any part of either state, with a permit from the naval-officer of the district from which such vessel departs with her cargo ..."); Article Eighth (providing for joint regulation of navigation on the River); Article Ninth (providing for a bistate commission to govern the erection of "[l]ighthouses, beacons, buoys, or other signals"). Id., at 342-343. If any inference at all is to be drawn from Article Seventh's silence on the subject of regulatory authority, we think it is that each State was left to regulate the activities of her own citizens.
Maryland, however, argues that we must read Article Seventh's regulatory silence in her favor because her sovereignty over the River was "well-settled" by the time the 1785 Compact was drafted. Exceptions of Maryland to Report of Special Master 19 (hereinafter Md. Brief). Maryland is doubtless correct that if her sovereignty over the River was well settled as of 1785, we would apply a strong presumption against reading the Compact as stripping her authority to regulate activities on the River. See, e.g., Massachusetts v. New York, 271 U. S. 65, 89 (1926) ("[D]ominion over navigable waters, and property in the soil under them, are so identified with the exercise of the sovereign powers of government that a presumption against their separation from sovereignty must be indulged"). But we reject Maryland's historical premise.
Each State has produced reams of historical evidence to support its respective view about the status of sovereignty over the River as of 1785. We need not delve deeply into this historical record to decide this issue. Our own cases recognize that the scope of Maryland's sovereignty over the River was in dispute both before and after the 1785 Compact. Morris, upon which Maryland relies, does not support her argument. Therein, we observed that "[o]wing to the conflicting descriptions, as respected the Potomac River, contained in [the] royal grants, a controversy early arose between Virginia and Maryland." 174 U. S., at 224. While the 1785 Compact resolved certain jurisdictional issues, it did not determine the boundary between the States. Ibid. Accordingly, the controversy over sovereignty was "still continuing ... in 1874." Ibid. In Marine Railway, we likewise acknowledged that even after the 1785 Compact, "the question of boundary" was left "open to long continued disputes." 257 U. S., at 64. See also Rhode Island, 12 Pet., at 724 ("Maryland and Virginia were contending about boundaries in 1835 ... and the dispute is yet an open one [in 1838]"). Morris did ultimately decide that Maryland's 1632 charter included the Potomac River from shore to shore, 174 U. S., at 225, but this conclusion, reached in 1899, hardly negates our statements in that and other cases recognizing that the dispute over the interstate boundary continued well into the 19th century.
The mere existence of the 1785 Compact further belies Maryland's argument. After all, the 1785 Compact sought "to regulate and settle the jurisdiction and navigation" of the River. 1785-1786 Md. Laws ch. 1 (preamble). This endeavor would hardly have been required if, as Maryland claims, her well-settled sovereignty gave her exclusive authority to regulate all activity on the River.6 Nowhere is this more clear than with respect to the Article Seventh right of Virginia citizens to build improvements from the Virginia shore. In 1776, Virginia had purported to reserve sovereignty over "the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." Va. Const., Art. XXI, reprinted in 9 W. Hening's Statutes at Large 118. It would be anomalous to conclude that Maryland's sovereign authority to regulate the construction of such improvements was so well established a mere nine years later that the 1785 Compact's drafters did not even need to mention it.
Accordingly, we read the 1785 Compact in light of the ongoing dispute over sovereignty. Article Seventh simply guaranteed that the citizens of each State would retain the right to build wharves and improvements regardless of which State ultimately was determined to be sovereign over the River. That would not be decided until the Black-Jenkins Award of 1877.
The Black-Jenkins arbitrators held that Maryland was sovereign over the River to the low-water mark on the Virginia shore. See Act of Mar. 3, 1879, ch. 196, 20 Stat. 481-482. "[I]n further explanation of this award, the arbitrators deem[ed] it proper to add" four articles, id., at 482, the last of which provides:
" 'Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five.' " Ibid.
Unlike the 1785 Compact's Article Seventh, which concerned the rights of citizens, the plain language of Article Fourth of the Award gives Virginia, as a sovereign State, the right to use the River beyond the low-water mark. Nothing in Article Fourth suggests that Virginia's rights are subject to Maryland's regulation. Indeed, Virginia's riparian rights are limited only by Maryland's right of "proper use" and the proviso that Virginia not "imped[e] ... navigation," limitations that hardly would have been necessary if Maryland retained the authority to regulate Virginia's actions. Maryland argues, however, that the Black-Jenkins Award simply confirmed her well-settled ownership of the Potomac, and thus the rights granted to Virginia in Article Fourth are subject to Maryland's regulatory authority.
We have already rejected Maryland's contention that the extent of her sovereignty over the Potomac was well settled before the 1785 Compact. Similarly, we fail to see why Maryland and Virginia would have submitted to binding arbitration "for the purpose of ascertaining and fixing the boundary" between them if that boundary was already well settled. Id., at 481 (preamble). Indeed, the opinion issued by the arbitrators dispels any doubt that sovereignty was in dispute, and confirms that Virginia's Article Fourth rights are sovereign rights not subject to Maryland's regulation.
At the beginning of their opinion, the arbitrators explained that their task was to "ascertain what boundaries were assigned to Maryland" by her 1632 charter. Black-Jenkins Opinion (1877), App. to Report, p. D-2. The arbitrators then outlined the extent of the existing dispute over the boundary:
" The State of Virginia, through her Commissioners and other public authorities, adhered for many years to her claim for a boundary on the left bank of the Potomac. But the gentlemen who represent her before us expressed with great candor their own opinion that a true interpretation of the King's concession would divide the river between the States by a line running in the middle of it. This latter view they urged upon us with all proper earnestness, and it was opposed with equal zeal by the counsel for Maryland, who contended that the whole river was within the limits of the grant to Lord Baltimore." Id., at D-7.
Thus, contrary to Maryland's assertion, sovereignty over the River was hotly contested at the time of the arbitration. We see no reason, therefore, to depart from Article Fourth's plain language, which grants to Virginia the sovereign right to use the River beyond the low-water mark.
The reasoning contained in the Black-Jenkins opinion confirms the plain language of Article Fourth of the Award. Although the arbitrators initially determined that the boundary contained in the 1632 charter was the high-water mark on the Virginia shore, id., at D-9, they ultimately held that Virginia had gained ownership by prescription of the soil up to the low-water mark, id., at D-18. In the same paragraph, the arbitrators explained that Virginia had a sovereign right to build improvements appurtenant to her shore:
"The evidence is sufficient to show that Virginia, from the earliest period of her history, used the South bank of the Potomac as if the soil to low water-mark had been her own. She did not give this up by her Constitution of 1776, when she surrendered other claims within the charter limits of Maryland; but on the contrary, she expressly reserved 'the property of the Virginia shores or strands bordering on either of said rivers, (Potomac and Pocomoke) and all improvements which have or will be made thereon.' By the compact of 1785, Maryland assented to this, and declared that 'the citizens of each State respectively shall have full property on the shores of Potomac and adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements.' ... Taking all together, we consider it established that Virginia has a proprietory right on the south shore to low water- mark, and, appurtenant thereto, has a privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership, and which shall not impede the free navigation or other common use of the river as a public highway.
"To that extent Virginia has shown her rights on the river so clearly as to make them indisputable." Id., at D-18 to D-19.
The arbitrators did not differentiate between Virginia's dominion over the soil and her right to construct improvements beyond low-water mark. Indeed, Virginia's right "to erect ... structures connected with the shore" is inseparable from, and "necessary to," the "full enjoyment of her riparian ownership" of the soil to low-water mark. Ibid. Like her ownership of the soil, Virginia gained the waterway construction right by a long period of prescription. That right was "reserved" in her 1776 Constitution, "assented to" by Maryland in the 1785 Compact, and "indisputabl[y]" shown by Virginia. Ibid. Thus, the right to use the River beyond low-water mark is a right of Virginia qua sovereign, and was nowhere made subject to Maryland's regulatory authority. Maryland's necessary concession that Virginia owns the soil to low-water mark must also doom her claim that Virginia does not possess riparian rights appurtenant to those lands to construct improvements beyond the low-water mark and otherwise make use of the water in the River.7
We reject Maryland's remaining arguments. Maryland, as well as Justice Stevens, post, at 2 (dissenting opinion), contends that the Award merely confirmed the private property rights enjoyed by Virginia citizens under Article Seventh of the 1785 Compact and the common law, which rights are in turn subject to Maryland's regulation as sovereign over the River. The arbitration proceedings, however, were convened to "ascertai[n] and fi[x] the boundary" between coequal sovereigns, 20 Stat. 481 (preamble), not to adjudicate the property rights of private citizens. Neither Maryland nor Justice Stevens provides any reason to believe the arbitrators were addressing private property rights when they awarded "Virginia" a right to use the River beyond the low-water mark. Their interpretation, moreover, renders Article Fourth duplicative of the 1785 Compact and the common law (which secured riparian owners' property rights) and the rest of the Black-Jenkins Award (which granted Maryland sovereignty to low-water mark).8 Only by reading Article Fourth in accord with its plain language can this Court give effect to each portion of the Award. See, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) ("It is 'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant' ") (quoting Duncan v. Walker, 533 U. S. 167, 174 (2001) (some internal quotation marks omitted)).
Relatedly, Maryland argues that the Award could not have "elevate[d]," Md. Brief 29, the private property rights of the 1785 Compact to sovereign rights because the arbitrators disclaimed "authority for the construction of this compact," Black-Jenkins Opinion (1877), App. to Report, at D-18. Again, Maryland mischaracterizes the arbitrators' decision. In granting Virginia sovereign riparian rights, the arbitrators did not construe or alter any private rights under the 1785 Compact; rather, they held that Virginia had gained sovereign rights by prescription.
Finally, Maryland notes that under Article Fourth of the Award, Virginia must exercise her riparian rights on the River " 'without impeding the navigation or otherwise interfering with the proper use of it by Maryland ... .' " 20 Stat. 482 (emphasis added). Maryland suggests that this language indicates her continuing regulatory authority over Virginia's exercise of her riparian rights. This seems to us a strained reading. The far more natural reading accords with the plain language of the Award and opinion: Maryland and Virginia each has a sovereign right to build improvements appurtenant to her own shore and to withdraw water, without interfering with the "proper use of" the River by the other.9
Justice Kennedy, while acknowledging that Virginia has a right to use the River, argues that Maryland may regulate Virginia's riparian usage so long as she does not exclude Virginia from the River altogether. Post, p. 1 (dissenting opinion). To reach this conclusion, he reasons that the Black-Jenkins Opinion rested Virginia's prescriptive riparian rights solely on Maryland's assent to the riparian rights granted to private citizens in the 1785 Compact. Post, at 6-9. According to Justice Kennedy, therefore, "Virginia's claims under Black-Jenkins rise as high as the Compact but no higher." Post, at 8.
We have already held that the Award's plain language permits no inference of Maryland's regulatory authority, supra, at 11-12; we also disagree that the arbitrators relied solely on the 1785 Compact as support for Virginia's prescriptive rights. To the contrary, the arbitrators' opinion also relied upon Virginia's riparian usage "from the earliest period of her history" and her express reservation in her 1776 Constitution of the unrestricted right to build improvements from the Virginia shore. Black-Jenkins Opinion (1877), App. to Report, p. D-18. Indeed, since the arbitrators disclaimed "authority for the construction of [the 1785] compact ... because nothing which concern[ed] it" was before them, ibid., it would be anomalous to conclude that Virginia's "sole right" under the Award "stem[s] from," and is "delimited" by, Article Seventh of the Compact. Post, at 8, 9 (Kennedy, J., dissenting).
Accordingly, we conclude that the Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, subject to the constraints of federal common law and the Award.
We next consider whether Virginia has lost her sovereign riparian rights by acquiescing in Maryland's regulation of her water withdrawal and waterway construction activities. We recently considered in depth the "affirmative defense of prescription and acquiescence" in New Jersey, 523 U. S., at 807. To succeed in her defense, Maryland must " 'show by a preponderance of the evidence ... a long and continuous ... assertion of sovereignty over' " Virginia's riparian activities, as well as Virginia's acquiescence in her prescriptive acts. Id., at 787 (quoting Illinois v. Kentucky, 500 U. S. 380, 384 (1991)). Maryland has not carried her burden.
Although "we have never established a minimum period of prescription" necessary for one State to prevail over a coequal sovereign on a claim of prescription and acquiescence, New Jersey, supra, at 789, we have noted that the period must be "substantial," id., at 786. Maryland asserts that in the 125 years since the Black-Jenkins Award, Virginia has acquiesced in her pervasive exercise of police power over activities occurring on piers and wharves beyond the low-water mark. Among other things, Maryland claims, and Virginia does not dispute, that it has taxed structures erected on such improvements (i.e., restaurants, etc.); issued licenses for activities occurring thereon (i.e., liquor, gambling, etc.); and exercised exclusive criminal jurisdiction over crimes occurring on such improvements beyond the low-water mark. We agree with the Special Master that this evidence has little or no bearing on the narrower question whether Virginia acquiesced in Maryland's efforts to regulate her right to construct the improvements in the first instance and to withdraw water from the River. See Report 79-82. With respect to Maryland's regulation of these particular rights, the claimed prescriptive period is much shorter.
It is undisputed that Maryland issued her first water withdrawal permit to a Virginia entity in March 1957 and her first waterway construction permit in April 1968. The prescriptive period ended, at the latest, in February 2000, when Virginia sought leave to file a bill of complaint in this Court. Accordingly, Maryland has asserted a right to regulate Virginia's water withdrawal for, at most, 43 years, and a right to regulate waterway construction for, at most, 32 years. Only once before have we deemed such a short period of time sufficient to prove prescription in a case involving our original jurisdiction. See Nebraska v. Wyoming, 507 U. S. 584, 594-595 (1993) (41 years). In that case, we held that Nebraska's sovereign right to water stored in certain inland lakes was established by a decree issued in 1945. Id., at 595. We held, in the alternative, that "Wyoming's arguments are foreclosed by its postdecree acquiescence" for 41 years. Ibid. Here, it is Virginia's sovereign right that was clearly established by a prior agreement, and Maryland that seeks to defeat those rights by showing Virginia's acquiescence. Under these circumstances, it is far from clear that such a short prescriptive period is sufficient as a matter of law. Cf. New Jersey, 523 U. S., at 789 (noting that a prescriptive period of 64 years is "not insufficient as a matter of general law"). But even assuming such a short prescriptive period would be adequate to overcome a sovereign right granted in a federally approved interstate compact, Maryland's claim fails because it has not proved Virginia's acquiescence.
To succeed on the acquiescence prong of her defense, Maryland must show that Virginia "failed to protest" her assertion of sovereign authority over waterway construction and water withdrawal. Id., at 807.10 As the Special Master found, however, Virginia vigorously protested Maryland's asserted authority during the negotiations that led to the passage of §181 of the Water Resources Development Act of 1976 (WRDA), 90 Stat. 2917, 2939-2940, codified at 42 U. S. C. §1962d-11a.
Section 181 ultimately required Maryland and Virginia to enter into an agreement with the Secretary of the Army apportioning the waters of the Potomac River during times of low flow. 90 Stat. 2939-2940. At the outset of negotiations over §181, Maryland proposed a draft bill that asserted her exclusive authority to allocate water from the Potomac. Virginia officials protested Maryland's proposal in three congressional hearings during the summer of 1976, asserting Virginia's unqualified right to withdraw water from the River, and objecting that Maryland's bill "might deprive Virginia of its riparian rights to the waters of the Potomac River as guaranteed by the 1785 compact ... and the arbitration award of 1877 ... ." Omnibus Water Resources Development Act of 1976: Hearings before the Subcommittee on Water Resources of the Senate Committee on Public Works, 94 Cong., 2d Sess., 2068 (statement of J. Leo Bourassa) (Aug. 5, 1976); see also Potomac River: Hearings and Markup before the Subcommittee on Bicentennial Affairs, the Environment, and the International Community, and the House Committee on the District of Columbia, 94th Cong., 2d Sess., 680, 693-694, 703 (statement of Earl Shiflet) (June 25, 1976); Water Resources Development--1976: Hearings before the Subcommittee on Water Resources of the House Committee on Public Works and Transportation, 94th Cong., 2d Sess., 442-446 (statement of Eugene Jensen) (Aug. 31, 1976). As a result of Virginia's protest, the final legislation provided that "nothing in this section shall alter any riparian rights or other authority of ... the Commonwealth of Virginia, or any political subdivision thereof ... relative to the appropriation of water from, or the use of, the Potomac River." 42 U. S. C. §1962d-11a(c). Similarly, nothing in the Low Flow Allocation Agreement reached by Maryland and Virginia pursuant to the WRDA suggested that Maryland had authority to regulate Virginia's riparian rights in the River. Va. Lodging L-285 to L-309. We hold that §181 of the WRDA and the Low Flow Allocation Agreement are conclusive evidence that, far from acquiescing in Maryland's regulation, Virginia explicitly asserted her sovereign riparian rights.11
* * *
Accordingly, we overrule Maryland's exceptions to the Report of the Special Master. We grant the relief sought by Virginia and enter the decree proposed by the Special Master.
It is so ordered.
COMMONWEALTH OF VIRGINIA, PLAINTIFF v. STATE OF MARYLAND
1 on bill of complaint
[December 9, 2003]
Justice Stevens, with whom Justice Kennedy joins, dissenting.
The basic facts that should control the disposition of this case are not in dispute. Maryland owns the water in the Potomac River to the low-water mark on the river's southern shore. Virtually the entire river is located within Maryland. Maryland is therefore the sovereign that exercises regulatory jurisdiction over the river, subject only to the provisions of the Maryland-Virginia Compact of 1785 (1785 Compact)1 and the Virginia and Maryland Boundary Agreement of 1878 (Black-Jenkins Award),2 and to the authority of the United States to preserve the river's navigability and protect its water quality.
Article Seventh of the 1785 Compact provides that the "citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging," including the specific privilege of making wharves and other improvements, and a "right of fishing in the river that shall be common to, and equally enjoyed by, the citizens of both states ... ."3 The 1785 Compact is silent on the subject of water withdrawals. Nevertheless, the owners of property abutting the river unquestionably enjoy full riparian rights as part of the "emoluments and advantages" appurtenant to their title. Indeed, the Black-Jenkins Award confirms this understanding; under Article Fourth, Virginia "has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership ... ."4
The question for decision, therefore, is simple: Are riparian landowners' rights to withdraw water unlimited, or may they be restricted by the sovereign that owns and controls the adjacent water body (in this case, Maryland)? In my opinion--an opinion apparently shared by the responsible Virginia and Maryland officials in the years between 1956 and 1996, see ante, at 5, 17--the common law provides a straightforward answer to that question. Although riparian owners may withdraw water for domestic and agricultural purposes, the Federal Government and, "[i]n the absence of conflict with federal action or policy," the States "may exercise [their] police power[s] by controlling the initiation and conduct of riparian and nonriparian uses of water." Restatement (Second) of Torts §856, Comment e (1979). Moreover, this case does not involve individual riparian landowners' withdrawals of water for their own domestic use, but the Fairfax County Water Authority's withdrawals for the use of county residents. Under Virginia law, such " 'use of the waters of a stream to supply the inhabitants of [an area] with water for domestic purposes is not a riparian right.' " Purcellville v. Potts, 179 Va. 514, 521, 19 S. E. 2d 700, 703 (1942). Clearly, then, the authority's proposed use of Potomac waters cannot be defended as an exercise of absolute and unregulable riparian rights. It necessarily follows, I believe, that such a use may only be made with the consent of the sovereign that owns the river. That sovereign is, indisputably, the State of Maryland.
We need go no further. This case does not require us to determine the precise extent or character of Maryland's regulatory jurisdiction. Rather, the narrow issue before us is whether Maryland may impose any limits on withdrawals by Virginia landowners whose property happens to abut the Potomac. Because those landowners' riparian rights are--like all riparian rights at common law--subject to the paramount regulatory authority of the sovereign that owns the river, I would sustain Maryland's exceptions to the Report of the Special Master and enter judgment dismissing Virginia's complaint.
COMMONWEALTH OF VIRGINIA, PLAINTIFF v. STATE OF MARYLAND
1 on bill of complaint
[December 9, 2003]
Justice Kennedy, with whom Justice Stevens joins, dissenting.
Failing to appreciate a basic rule of territorial adjudication, the Court concludes it must "reject Maryland's historical premise" that in 1785 the State had title to the Potomac River (River), its bed, and its waters. Ante, at 9. In my respectful view, and contrary to the majority's premise, the circumstance that two parties both claim rights to a parcel of land has no legal significance if one of the two parties has clear title already, absent some further argument that the claim against the holder of the title is reinforced by a history of prescription, estoppel, or adverse use. Contra, ibid. (relying on the fact that "the scope of Maryland's sovereignty over the River was in dispute both before and after the 1785 Compact" to conclude that Maryland lacked sovereignty over the River in 1785). Just as this basic rule of property adjudication is true of disputes between two private persons, it is true of title disputes between States. "No court acts differently in deciding on boundary between states, than on lines between separate tracts of land." Rhode Island v. Massachusetts, 12 Pet. 657, 734 (1838). See also Rhode Island v. Massachusetts, 4 How. 591, 628 (1846) ("[A]scertain[ing] and determin[ing] the boundary in dispute ... , disconnected with the consequences which follow, is a simple question, differing little, if any, in principle from a disputed line between individuals"). Cf. Alabama v. Georgia, 23 How. 505 (1860) (settling quiet title action between States by engaging in traditional quiet title analysis).
Since "[t]here is not in fact, or by any law can be, any territory which does not belong to one or the other state; so that the only question is, to which the territory belongs," 12 Pet., at 733, a competent authority's determination that a sovereign's title lies clear and unimpaired necessarily has retrospective force. This is so despite the losing sovereign's prior attempt to gain what was not its own.
The majority, in the face of these doctrines and precedents, nonetheless relies on the proposition that Maryland's historical title is to be doubted because Virginia long disputed it and the parties undertook to resolve the dispute. It is a curious proposition to suggest that by submitting to adjudication, arbitration, or compact negotiations a party concedes its rights are less than clear. The opposite inference is just as permissible. The implication of the majority's principle, moreover, is that self-help and obdurate refusal to submit a claim to resolution have some higher standing in the law than submission of disputes to a competent authority.
Until today, the competent authorities to whom Maryland and Virginia submitted their dispute have been clear and unanimous on this point: As of 1784, the year before the Compact, the Governor of Virginia could not enter the waters of the Potomac to cool himself by virtue of any title Virginia then had to the riverbed. Title to the whole River, and its bed, was in Maryland. First, in 1877, the parties agreed, with later congressional approval, that Maryland had clear title to the whole River dating from 1632. See Black-Jenkins Opinion (1877), App. to Report of Special Master, p. D-9 (hereinafter App. to Report of Special Master) ("The intent of the [original 1632 Maryland] charter is manifest all through to include the whole river within Lord Baltimore's grant"). Then, as if this 1877 determination were not enough, this Court independently reviewed the question in 1899. The Court, too, reached the conclusion that Maryland had clear title to the whole River dating from 1632. The Court said, "the grant to Lord Baltimore, in unmistakable terms, included the Potomac River." Morris v. United States, 174 U. S. 196, 223 (1899). And the Court confirmed this determination in 1910. See Maryland v. West Virginia, 217 U. S. 1, 45-46 (1910). Thus, unless prescription had been worked by some previous conduct to give Virginia at least some limited rights, in 1784 Maryland had clear title to the whole River, as much as in 1632.
Neither Virginia's counsel nor the majority of the Court today contends that prescription occurred prior to the Compact of 1785. In 1784, therefore, under the law, Virginia had little more than a land border between it and Maryland in the area here under consideration; Virginia did not have a river border since the River was not its own. That in 1784 Virginia did not admit Maryland's clear title to this territory and was unwilling to comply with Maryland's continuing and consistent demands that it respect Maryland's sovereign control over the River did not cloud the smooth stretch of Maryland's title back to 1632.
Whether the Governor of the Commonwealth, in 2003, may cool himself in the River--or in this case, build a water pipe for the benefit of communities not on the riverbank--without so much as an "if you please" to the State of Maryland entirely depends upon whether in the intervening time since 1784 Maryland has in some way ceded its sovereignty over the River. See United States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987) ("[A] waiver of sovereign authority will not be implied, but instead must be 'surrendered in unmistakable terms' "); 12 Pet., at 733 ("[T]itle, jurisdiction, and sovereignty, are inseparable incidents, and remain so till the state makes some cession").
Virginia asserts that an agreement and an award set out in two documents establish that Maryland ceded Virginia an unqualified right to enter upon Maryland's territory. The case, therefore, turns on these two documents: the 1785 Compact between the two States and their 1877 arbitrated award (Black-Jenkins Award or Award).
Via the 1785 Compact, Article Seventh, both States promised the other rights to use the River that presuppose neither could exclude the other from the River.
"The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." Va. Code Ann. Compacts App., pp. 342-343.
Thus, in effect, they gave one another assurances of River access in exchange for the identical, reciprocal pledge. The mutual promise was sensible enough since at the time both parties claimed to own the whole River, and equally, therefore, neither accepted the other's claim to have any right to gain access to the River. The Compact, in essence, was a predictable and intelligent hedging agreement (protecting both from the danger that at some later point the other's claim to full and clear title would be confirmed by a competent legal authority).
Once it was established by a competent legal authority that Maryland had clear title to the whole River, the terms of Article Seventh of the Compact, in retrospect, became the sole fount of Virginia's right to River access. The terms by which the parties promised River access to one another became relevant, as one would expect from a hedging agreement, after occurrence of the development the parties hedged against.
Maryland, as the territory's sovereign, once could have excluded Virginia landowners from the River, but Article Seventh abrogates Maryland's right of sovereignty to this extent. By its clear language, Article Seventh creates a right for citizen landowners to have some access to the River territory by, for example, the construction of improvements appurtenant to the shore.
Article Seventh, however, does not abrogate Maryland's sovereign right to exercise its police power, and the regulatory authority that implies, over its River territory; and the majority does not contend otherwise. The citizen landowner rights created by Article Seventh, as a consequence, remain subject to Maryland's sovereign powers insofar as that consists with Virginia's guaranteed access. That the landowners' rights are so limited is well illustrated by the very different language the parties used when they wanted to abrogate one another's police power over citizens or the other State. For example, as the majority agrees, Articles Fourth, Eighth, and Ninth of the Compact all contain express and particular police power abrogations. See ante, at 8-9. So does Article Tenth. Article Seventh, however, stands in clear contrast to these provisions. It does not contemplate the transfer or abrogation of Maryland's police power. It cannot be the basis for concluding that Virginia's citizens now have not just a right of access to the River, but the additional right of access free of Maryland's regulatory police power. See Massachusetts v. New York, 271 U. S. 65, 89 (1926) ("[D]ominion over navigable waters, and property in the soil under them, are so identified with the exercise of the sovereign powers of government that a presumption against their separation from sovereignty must be indulged").
As a result, Article Seventh sets up an awkward situation, forcing this Court to reconcile a landowner right not to be excluded with Maryland's sovereign regulatory authority. In effect, it forces the Court to inquire whether any particular regulation amounts instead to an exclusion prohibited by the Compact. That the Compact forces this determination, parallel to that at issue in a case of an overburdened easement, is no reason to deny its plain language or the accepted proposition that Maryland has long had title to the River and its bed.
The next step is to consider the 1877 Black-Jenkins Award and to ask whether that Award expands Virginia's rights of River access beyond what was provided in the Compact. The Black-Jenkins Award affirms that Virginia, as much as its citizens, has riparian rights under the 1785 Compact, to the extent of the Commonwealth's own riparian ownership. See ante, at 11. The question remains, however, whether Black-Jenkins converted Virginia's right of riparian ownership under Article Seventh to a right of sovereignty in the waters. For, if it did not do so, then Virginia's right of access to the River is limited like that of any other riparian owner under Article Seventh. In relevant part, the Award states:
"Fourth. Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." Act of Mar. 3, 1879, ch. 196, 20 Stat. 482 (internal quotation marks omitted).
The majority suggests this language gives Virginia sovereign rights to the River because it uses the words "Virginia" and "full dominion." See ante, at 14 ("The arbitrators did not differentiate between Virginia's dominion over the soil and her right to construct improvements beyond low-water mark"). That reading cannot be right for two reasons. First, the evident design of Paragraph Fourth is to acknowledge a Virginia access right parallel to that of its own citizens who were riparian landowners. Paragraph Fourth sets out two recitations, and they are in contradistinction. Virginia is granted "full dominion" up to the low water line. This is unlimited. What comes next is not. As to the rights beyond this full dominion, that is to say beyond the low water line, Virginia has only the rights of a riparian owner. If the arbitrators meant to set the two rights in parallel, as Virginia argues, they would not have used the word "but" to distinguish them. Further, the phrase "a right to such use" is limited by the phrase "riparian ownership." This is far different from saying Virginia has full dominion "up to the low water line, and with respect to" any improvements it makes appurtenant to its shore.
Second, Black-Jenkins states that the limited rights Virginia has, the Commonwealth achieved by prescription. Maryland acquiesced to Virginia's adverse use, Black-Jenkins says, as a result of Maryland's adherence to Article Seventh of the Compact.
"Virginia, from the earliest period of her history, used the South bank of the Potomac as if the soil to low water-mark had been her own. She did not give this up by her Constitution of 1776, when she surrendered other claims within the charter limits of Maryland; but on the contrary, she expressly reserved 'the property of the Virginia shores or strands bordering either side of said rivers, (Potomac and Pocomoke,) and all improvements which have or will be made thereon.' By the compact of 1785, Maryland assented to this, and declared that 'the citizens of each State respectively shall have full property on the shores of Potomac ... and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements.' We are not authority for the construction of this compact, because nothing which concerns it is submitted to us . . . . Taking all together, we consider it established that Virginia has a proprietory right on the south shore to low water-mark, and, appurtenant thereto, has a privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership, and which shall not impede the free navigation or other common use of the river as a public highway." App. to Report of Special Master D18-D19 (quoting Article Seventh of the Compact).
That Maryland's "assent" and "declaration" in the Compact prove Maryland's acquiescence in Black-Jenkins' prescription analysis illustrates the limits of the Award: The prescriptive rights it recognized stemmed from the Compact. Virginia's claims under Black-Jenkins rise as high as the Compact but no higher. The Commonwealth can do no more than assert those rights granted to landowners by Article Seventh.
The above analysis, of course, does not depend on the conclusion that Maryland's acquiescence was the sole basis for the Black-Jenkins Award, as the majority contends. See ante, at 17. A factor in any test can be a necessary though not sufficient element. Here, the arbitrators' express aim was to apply "[u]sucaption, prescription, or the acquisition of title founded on long possession, uninterrupted and undisputed," which they noted were intended to help sovereigns avoid the "bloody wars" that territorial disputes occasion. See App. to Report of Special Master D17-D18. The inquiry into acquiescence (i.e., whether the territory was disputed) fits into that analytical framework as a necessary, though not sole, factor. The other factors, such as Virginia's long use, were also necessary, though not sole factors. This explains why the arbitrators said Virginia's long use and Maryland's acquiescence were "Tak[en] all together." See id., at D19. It also explains why the text of the Award--which after all is of greater significance than the arbitrator's attached opinion--distinguishes between Virginia's full dominion up to the low water line and its use rights beyond that point, a distinction consistent with Article Seventh.
The majority's decision ultimately seems to rely on rights stemming from some other, additional prescription to conclude that Paragraph Fourth expands Virginia's rights. See ante, at 16. It fails to explain, however, what other rights Black-Jenkins identified other than those achieved by the prescription discussed above. Notwithstanding the majority's conclusory position, the sole right acknowledged in Black-Jenkins was that which was delimited by the operation of Article Seventh
The majority also implies, in footnote 8 of its opinion, that Virginia's right to use the River free from Maryland's regulation is equally a matter of federal common law. See ante, at 17, n. 9 (relying on Colorado v. New Mexico, 459 U. S. 176 (1982)). That suggestion cannot be right, however. The doctrine on which the majority relies pertains to interstate bodies of water. As explained above, the Potomac River belongs to Maryland and so is not an interstate body of water. Those cases in which we have considered the common-law rights of sovereigns who either both had title to half of a river, or who both had full title to a river but at different points in its flow, such as Colorado, are inapposite to this unique, sole-title context.
Since Black-Jenkins does not expand Virginia's right of access, Article Seventh's framework controls. The awkwardness of asking whether a regulation by Maryland amounts to exclusion is heightened here, where Virginia, as a riparian landowner, asserts its right to have access to the River for the purpose of serving needs well beyond recognized riparian use. This, in turn, raises the question whether Maryland can decide Virginia has too much population, and on that ground deny Virginia access for the purpose of meeting water demands.
This, to be sure, is a question of considerable difficulty, for it is not our law or our constitutional system to allow one State to regulate transactions occurring in another or to project its legislative power beyond its own borders. See Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935). Virginia's access rights, though not rights of sovereignty, are rights held by a sovereign, which Maryland well knew when it signed the Compact. And, nothing in the Compact gives Maryland the power to regulate the Commonwealth of Virginia as most States can regulate their own riparian landowners; specifically, Paragraph Fourth of the Award (like Article Seventh of the Compact) prohibits Maryland from excluding Virginia from the River. These considerations counsel careful deliberation before deciding whether Maryland regulation amounts to an exclusion in light of the particular riparian use at issue.
Determining whether a regulation is either (1) a legitimate River regulation of riparian use, or (2) a wrongful exclusion, under the Compact, of the riparian owner from the River, may implicate some limitations based on a reasonable prediction of consequences to the River's flow. That is the question that Virginia should have submitted to the Special Master. The majority, however, simply holds that Virginia has a right to gain access to and enjoy the River coextensive with Maryland's own. Its ruling denies the force of the historical documents at issue. It has no logical basis either, unless the majority also makes the silent assumption that Virginia is constrained by some principle of reasonableness. The majority's interpretation, that Virginia's right is whole, sovereign, and unobstructed, otherwise leads to the conclusion that Virginia could build all the way across the River if the Commonwealth so chooses, as long as the Commonwealth itself concludes the construction is an improvement appurtenant to its shoreline and not an obstruction to the River's navigability.
The anomaly that exists because of the rather unusual circumstance that Maryland owns the entirety of the River affects this case's difficulty; but it does not affect the fact that the Court must confront the problem, not ignore it and send Maryland and its rights away by fiat. This is particularly true in light of the fact that Virginia's right to access and Maryland's right to regulate have coexisted in actual application for nearly 50 years. See ante, at 5. History shows the framework can be workable.
If Maryland's attempted regulation of Virginia contradicts Virginia's place in the federal system, that matter can be explored from case to case. Here, however, the Commonwealth did not ask the Special Master, as it should have, to consider whether, given the nature of the riparian rights at issue, see ante, at 2-3 (Stevens, J., dissenting), the effect of the proposed use on the River, and the attempted regulation at issue, Maryland has in effect excluded Virginia from its rightful riparian use, as distinct from enacting reasonable regulations of that use. Virginia is not due the broad relief it instead now receives: the majority's declaration that Virginia is the sovereign of whatever Maryland territory appurtenant to Virginia's shoreline Virginia now chooses to claim. In agreement with Justice Stevens, I would sustain Maryland's objections to the Report of the Special Master and enter judgment dismissing Virginia's complaint. For these reasons, with respect, I dissent.
2 FOOTNOTES
Footnote 1
Maryland's Commissioners were Daniel of St. Thomas Jenifer, Thomas Stone, and Samuel Chase; Virginia was represented by
George Mason and Alexander Henderson. 1785-1786 Md. Laws ch. 1 (preamble).
Footnote 2
The "low-water mark" of a river is defined as "the point to which the water recedes at its lowest stage." Black's Law Dictionary 1586 (7th ed. 1999).
Footnote 3
Because Maryland and Virginia entered into the 1785 Compact prior to the adoption of the United States Constitution, Congress had not previously approved it pursuant to the Constitution's Compact Clause. See generally Wharton, 153 U. S., at 165-173.
Footnote 4
This case marks the second time Virginia sought leave to file an original action against Maryland concerning Potomac River rights. See Virginia v. Maryland, 355 U. S. 269 (1957) (per curiam). In the earlier fray, the Special Master persuaded the States to settle their dispute. They entered into a new compact, which superseded the 1785 Compact but specifically preserved the rights delineated in Article Seventh. See Potomac River Compact of 1958, 1959 Md. Laws ch. 269; 1959 Va. Acts ch. 28; Pub. L. 87-783, 76 Stat. 797.
Footnote 5
Maryland also contended that the 1785 Compact and the Black-Jenkins Award did not apply to the nontidal portions of the River. The Special Master rejected that argument, Report 96, and Maryland does not pursue it before this Court.
Footnote 6
For example, if Maryland had well-settled exclusive jurisdiction over the River, it certainly would not have agreed to joint regulation of fishing as it did in Article Eighth of the 1785 Compact.
Footnote 7
The sovereign character of Virginia's Article Fourth riparian rights is further confirmed by the proposal of Maryland's representatives before the arbitrators. Maryland contended that the "true" boundary line should be drawn around "all wharves and other improvements now extending or which may hereafter be extended by authority of Virginia from the Virginia shore into the [Potomac] beyond low water mark." Va. Lodging L-130 (W. Whyte and I. Jones, Boundary Line Between the States of Maryland and Virginia, Before the Hons. Jeremiah S. Black, William A. Graham, and Charles J. Jenkins, Arbitrators upon the Boundary Line between the States of Virginia and Maryland (June 26, 1874)). In proceedings from 1870-1874, in which the States unsuccessfully attempted to fix the boundary without the necessity of arbitration, Maryland's commissioners took the same position, which they described as follows:
"The line along the Potomac River is described in our first proposition according to our construction of the compact of 1785, and as we are informed, is according to the general understanding of the citizens of both States residing upon or owning lands bordering on the shores of that river, and also in accordance with the actual claim and exercise of jurisdiction by the authorities of the two States hitherto." Id., at L-14 (Report and Journal of Proceedings of the Joint Commissioners to Adjust the Boundary Line of the States of Maryland and Virginia 27 (1874)).
Although the arbitrators did not accept Maryland's proposal to preserve Virginia's sovereign right to build improvements by including them within Virginia's territory, they accomplished the same result in Article Fourth of the Award.
Footnote 8
Similarly, Justice Kennedy does not adequately explain why Article Fourth--part of a document that grants unrestricted sovereign rights--would merely "affir[m] that Virginia, as much as its citizens, has riparian rights under the 1785 Compact," post, at 6 (dissenting opinion), when Virginia, as owner of the soil to low-water mark, already possessed such rights under the common law.
Footnote 9
Federal common law governs interstate bodies of water, ensuring that the water is equitably apportioned between the States and that neither State harms the other's interest in the river. See, e.g., Colorado v. New Mexico, 459 U. S. 176, 183 (1982) ("Equitable apportionment is the doctrine of federal common law that governs the disputes between States concerning their rights to use the water of an interstate stream").
Footnote 10
Maryland's evidence that Virginia has never operated a permitting system for water withdrawal or waterway construction is insufficient to satisfy Maryland's burden. See New Jersey, 523 U. S., at 788, n. 9.
Footnote 11
Consequently, we need not discuss other evidence of Virginia's protests, which has been ably chronicled by the Special Master. See Report 83-89.
3 FOOTNOTES
Footnote 1
1785-1786 Md. Laws ch. 1; 1785 Va. Acts ch. 17.
Footnote 2
1878 Md. Laws ch. 274; 1878 Va. Acts ch. 246; Act of Mar. 3, 1879, ch. 196, 20 Stat. 481.
Footnote 3
Va. Code Ann. Compacts App. pp. 342-343 (Lexis 2001).
Footnote 4
Id., §7.1-7, at 94 (emphasis added).
11
UNITED STATES v. ATLANTIC RESEARCH CORP.
1 certiorari to the united states court of appeals for the eighth circuit
No. 06-562. Argued April 23, 2007--Decided June 11, 2007
Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 allow private parties to recover expenses associated with cleaning up contaminated sites. Section 107(a) defines four categories of potentially responsible parties (PRPs) and makes them liable for, among other things, "(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan" and "(B) any other necessary costs of response incurred by any other person consistent with [such] plan," §§107(a)(4)(A)-(B). Originally, some courts interpreted §107(a)(4)(B) as providing a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. However, after the enactment of §113(f), which authorizes one PRP to sue another for contribution, many courts held it to be the exclusive remedy for PRPs. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, this Court held that a private party could seek contribution under §113(f) only after being sued under §106 or §107(a).
After respondent Atlantic Research cleaned up a Government site it leased and contaminated while doing Government work, it sued the Government to recover some of its costs under, as relevant here, §107(a). The District Court dismissed the case, but the Eighth Circuit reversed, holding that §113(f) does not provide the exclusive remedy for recovering cleanup costs and that §107(a)(4)(B) provided a cause of action to any person other than those permitted to sue under §107(a)(4)(A).
Held: Because §107(a)(4)(B)'s plain terms allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. Pp. 4-11.
(a) Applying the maxim that statutes must "be read as a whole," King v. St. Vincent's Hospital, 502 U. S. 215, 221, subparagraph (B)'s language can be understood only with reference to subparagraph (A). The provisions are adjacent and have similar structures, and the text denotes a relationship between them. Subparagraph (B)'s phrase "other necessary costs" refers to and differentiates the relevant costs from those listed in subparagraph (A). Thus, it is natural to read the phrase "any other person" by referring to the immediately preceding subparagraph (A). Accepting the Government's interpretation--that "any other person" refers only to a person not identified as a PRP in §§107(a)(1)-(4)--would destroy the symmetry of subparagraphs (A) and (B) and render subparagraph (B) internally confusing. Moreover, because the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs, accepting that interpretation would reduce the number of potential plaintiffs to almost zero, rendering subparagraph (B) a dead letter. Pp. 4-7.
(b) Contrary to the Government's argument, this interpretation will not create friction between §107(a) and §113(f). Their two clearly distinct remedies complement each other: §113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a), while §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Thus, at least in the case of reimbursement, a PRP cannot choose §107(a)'s longer statute of limitations for recovery actions over §113(f)'s shorter one for contribution claims. Similarly, a PRP could not avoid §113(f)'s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability under §107(a). That choice of remedies simply does not exist, and in any event, a defendant PRP in a §107(a) suit could blunt any such distribution by filing a §113(f) counterclaim. Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate §113(f)(2), which prohibits §113(f) contribution claims against "[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement ... ." Although that settlement bar does not by its terms protect against §107(a) cost-recovery liability, a district court applying traditional equity rules would undoubtedly consider any prior settlement in the liability calculus; the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed costs incurred by another party; and settlement carries the inherent benefit of finally resolving liability as to the United States or a State. Pp. 7-11.
459 F. 3d 827, affirmed.
Thomas, J., delivered the opinion for a unanimous Court.
UNITED STATES, PETITIONER v. ATLANTIC
RESEARCH CORPORATION
1 on writ of certiorari to the united states court of
appeals for the eighth circuit
[June 11, 2007]
Justice Thomas delivered the opinion of the Court.
Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)--§§107(a) and 113(f)--allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)-(4), with a cause of action to recover costs from other PRPs. We hold that it does.
I
1 A
Courts have frequently grappled with whether and how PRPs may recoup CERCLA-related costs from other PRPs. The questions lie at the intersection of two statutory provisions--CERCLA §§107(a) and 113(f). Section 107(a) defines four categories of PRPs, 94 Stat. 2781, 42 U. S. C. §§9607(a)(1)-(4), and makes them liable for, among other things:
"(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and]
"(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan." §9607(a)(4)(A)-(B).
Enacted as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, §113(f) authorizes one PRP to sue another for contribution in certain circumstances. 42 U. S. C. §9613(f).1
Prior to the advent of §113(f)'s express contribution right, some courts held that §107(a)(4)(B) provided a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. See Cooper Industries, supra, at 161-162 (collecting cases); Key Tronic Corp. v. United States, 511 U. S. 809, 816, n. 7 (1994) same. After SARA's enactment, however, some Courts of Appeals believed it necessary to "direc[t] traffic between" §107(a) and §113(f). 459 F. 3d 827, 832 (CA8 2006) (case below). As a result, many Courts of Appeals held that §113(f) was the exclusive remedy for PRPs. See Cooper Industries, supra, at 169 (collecting cases). But as courts prevented PRPs from suing under §107(a), they expanded §113(f) to allow PRPs to seek "contribution" even in the absence of a suit under §106 or §107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc).
In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under §106 or §107(a). 543 U. S., at 161. This narrower interpretation of §113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under §107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168. After revisiting the issue, some courts have permitted §107(a) actions by PRPs. See Consolidated Edison Co. of N. Y. v. UGI Utilities, Inc., 423 F. 3d 90 (CA2 2005); Metropolitan Water Reclamation Dist. of Greater Chicago v. North American Galvanizing & Coatings, Inc., 473 F. 3d 824 (CA7 2007). However, at least one court continues to hold that §113(f) provides the exclusive cause of action available to PRPs. E. I. Dupont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006). Today, we resolve this issue.
B
In this case, respondent Atlantic Research leased property at the Shumaker Naval Ammunition Depot, a facility operated by the Department of Defense. At the site, Atlantic Research retrofitted rocket motors for petitioner United States. Using a high-pressure water spray, Atlantic Research removed pieces of propellant from the motors. It then burned the propellant pieces. Some of the resultant wastewater and burned fuel contaminated soil and groundwater at the site.
Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §107(a) and §113(f). After our decision in Cooper Industries foreclosed relief under §113(f), Atlantic Research amended its complaint to seek relief under §107(a) and federal common law. The United States moved to dismiss, arguing that §107(a) does not allow PRPs (such as Atlantic Research) to recover costs. The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003).
The Court of Appeals for the Eighth Circuit reversed. Recognizing that Cooper Industries undermined the reasoning of its prior precedent, 459 F. 3d, at 830, n. 4, the Court of Appeals joined the Second and Seventh Circuits in holding that §113(f) does not provide "the exclusive route by which [PRPs] may recover cleanup costs." Id., at 834 (citing Consolidated Edison Co., supra). The court reasoned that §107(a)(4)(B) authorized suit by any person other than the persons permitted to sue under §107(a)(4)(A). 459 F. 3d, at 835. Accordingly, it held that §107(a)(4)(B) provides a cause of action to Atlantic Research. To prevent perceived conflict between §107(a)(4)(B) and §113(f)(1), the Court of Appeals reasoned that PRPs that "have been subject to §§106 or 107 enforcement actions are still required to use §113, thereby ensuring its continued vitality." Id., at 836-837. We granted certiorari, 549 U. S. ___ (2007), and now affirm.
II
1 A
The parties' dispute centers on what "other person[s]" may sue under §107(a)(4)(B). The Government argues that "any other person" refers to any person not identified as a PRP in §§107(a)(1)-(4).2 In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research's claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraph (1)-(4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe--the persons listed in subparagraph (A). We agree with Atlantic
Research.
Statutes must "be read as a whole." King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991). Applying that maxim, the language of suparagraph (B) can be understood only with reference to subparagraph (A). The provisions are adjacent and have remarkably similar structures. Each concerns certain costs that have been incurred by certain entities and that bear a specified relationship to the national contingency plan.3 Bolstering the structural link, the text also denotes a relationship between the two provisions. By using the phrase "other necessary costs," subparagraph (B) refers to and differentiates the relevant costs from those listed in subparagraph (A).
In light of the relationship between the subparagraph, it is natural to read the phrase "any other person" by referring to the immediately preceding subparagraph (A), which permits suit only by the United States, a State, or an Indian tribe. The phrase "any other person" therefore means any person other than those three. See 42 U. S. C. §9601(21) (defining "person" to include the United States and the various States). Consequently, the plain language of subparagraph (B) authorizes cost-recovery actions by any private party, including PRPs. See Key Tronic, 511 U. S., at 818 (stating in dictum that §107 "impliedly authorizes private parties to recover cleanup costs from other PRP[s]" (emphasis added)).
The Government's interpretation makes little textual sense. In subparagraph (B), the phrase "any other necessary costs" and the phrase "any other person" both refer to antecedents--"costs" and "person[s]"--located in some previous statutory provision. Although "any other necessary costs" clearly references the costs in subparagraph (A), the Government would inexplicably interpret "any other person" to refer not to the persons listed in subparagraph (A) but to the persons listed as PRPs in paragraphs (1)-(4). Nothing in the text of §107(a)(4)(B) suggests an intent to refer to antecedents located in two different statutory provisions. Reading the statute in the manner suggested by the Government would destroy the symmetry of §§107(a)(4)(A) and (B) and render subparagraph (B) internally confusing.
Moreover, the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs. Hence, if PRPs do not qualify as "any other person" for purposes of §107(a)(4)(B), it is unclear what private party would. The Government posits that §107(a)(4)(B) authorizes relief for "innocent" private parties--for instance, a landowner whose land has been contaminated by another. But even parties not responsible for contamination may fall within the broad definitions of PRPs in §§107(a)(1)-(4). See 42 U. S. C. §9607(a)(1) (listing "the owner and operator of a ... facility" as a PRP); see also United States v. Alcan Aluminum Corp., 315 F. 3d 179, 184 (CA2 2003) ("CERCLA §9607 is a strict liability statute"). The Government's reading of the text logically precludes all PRPs, innocent or not, from recovering cleanup costs. Accordingly, accepting the Government's interpretation would reduce the number of potential plaintiffs to almost zero, rendering §107(a)(4)(B) a dead letter.4 See Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911) ("We must have regard to all the words used by Congress, and as far as possible give effect to them").
According to the Government, our interpretation suffers from the same infirmity because it causes the phrase "any other person" to duplicate work done by other text. In the Government's view, the phrase "any other necessary costs" "already precludes governmental entities from recovering under" §107(a)(4)(B). Brief for United States 20. Even assuming the Government is correct, it does not alter our conclusion. The phrase "any other person" performs a significant function simply by clarifying that subparagraph (B) excludes the persons enumerated in subparagraph (A). In any event, our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity.
B
The Government also argues that our interpretation will create friction between §107(a) and §113(f), the very harm courts of appeals have previously tried to avoid. In particular, the Government maintains that our interpretation, by offering PRPs a choice between §107(a) and §113(f), effectively allows PRPs to circumvent §113(f)'s shorter statute of limitations. See 42 U. S. C. §§9613(g)(2)-(3). Furthermore, the Government argues, PRPs will eschew equitable apportionment under §113(f) in favor of joint and several liability under §107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in §113(f)(2).
We have previously recognized that §§107(a) and 113(f) provide two "clearly distinct" remedies. Cooper Industries, 543 U. S., at 163, n. 3. "CERCLA provide[s] for a right to cost recovery in certain circumstances, §107(a), and separate rights to contribution in other circumstances, §§113(f)(1), 113(f)(3)(B)." Id., at 163 (emphases added). The Government, however, uses the word "contribution" as if it were synonymous with any apportionment of expenses among PRPs. Brief for United States 33, n. 14 ("Contribution is merely a form of cost recovery, not a wholly independent type of relief"); see also, e.g., Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301 (CA9 1997) ("Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution"). This imprecise usage confuses the complementary yet distinct nature of the rights established in §§107(a) and 113(f).
Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the "tortfeasor's right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault." Black's Law Dictionary 353 (8th ed. 1999). Nothing in §113(f) suggests that Congress used the term "contribution" in anything other than this traditional sense. The statute authorizes a PRP to seek contribution "during or following" a suit under §106 or §107(a). 42 U. S. C. §9613(f)(1).5 Thus, §113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP's right to contribution under §113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties.
By contrast, §107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under §107(a) without any establishment of liability to a third party. Moreover, §107(a) permits a PRP to recover only the costs it has "incurred" in cleaning up a site. 42 U. S. C. §9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.
Accordingly, the remedies available in §§107(a) and 113(f) complement each other by providing causes of action "to persons in different procedural circumstances." Consolidated Edison, 423 F. 3d, at 99; see also E. I. Dupont de Nemours, 460 F. 3d, at 548 (Sloviter, J., dissenting). Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a). And §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue §113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under §107(a). As a result, though eligible to seek contribution under §113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under §107(a). Thus, at least in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for §113(f) contribution claims.6
For similar reasons, a PRP could not avoid §113(f)'s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under §107(a).7 The choice of remedies simply does not exist. In any event, a defendant PRP in such a §107(a) suit could blunt any inequitable distribution of costs by filing a §113(f) counterclaim. 459 F. 3d, at 835; see also Consolidated Edison, supra, at 100, n. 9 (collecting cases). Resolution of a §113(f) counter-claim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the §107(a) action. 42 U. S. C. §9613(f)(a) ("In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate").
Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate the settlement bar set forth in §113(f)(2). That provision prohibits §113(f) contribution claims against "[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement ... ." 42 U. S. C. §9613(f)(2). The settlement bar does not by its terms protect against cost-recovery liability under §107(a). For several reasons, we doubt this supposed loophole would discourage settlement. First, as stated above, a defendant PRP may trigger equitable apportionment by filing a §113(f) counterclaim. A district court applying traditional rules of equity would undoubtedly consider any prior settlement as part of the liability calculus. Cf. Restatement (Second) of Torts §886A(2), p. 337 (1977) ("No tortfeasor can be required to make contribution beyond his own equitable share of the liability"). Second, the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed the costs incurred by another party. Third, settlement carries the inherent benefit of finally resolving liability as to the United States or a State.8
III
Because the plain terms of §107(a)(4)(B) allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
1 FOOTNOTES
Footnote 1
Section 113(f)(1) permits private parties to seek contribution during or following a civil action under §106 or §107(a). 42 U. S. C. §9613(f)(1). Section 113(f)(3)(B) permits private parties to seek contribution after they have settled their liability with the Government. §9613(f)(3)(B).
Footnote 2
CERCLA §107(a) lists four broad categories of persons as PRPs, by definition liable to other persons for various costs:
"(1) the owner and operator of a vessel or a facility,
"(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
"(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
"(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for [various costs]." 42 U. S. C. §§9607(a)(1)-(4).
Footnote 3
"The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency ... ." Cooper Industries Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, n. 2 (2004) (citing 40 CFR pt. 300 (2004)).
Footnote 4
Congress amended the statute in 2002 to exempt some bona fide prospective purchasers (BFPPs) from liability under §107(a). See 42 U. S. C. §9607(r)(1) (2000 ed., Supp. IV). The Government claims that these persons are non-PRPs and therefore qualify as "any other person" under its interpretation of §107(a)(4)(B). Prior to 2002, however, the statute made this small set of persons liable as PRPs. Accordingly, even if BFPPs now give some life to the Government's interpretation of §107(a)(4)(B), it would be implausible at best to conclude that §107(a)(4)(B) lay dormant until the enactment of §107(r)(1) in 2002.
Footnote 5
Similarly, §113(f)(3)(B) permits a PRP to seek contribution after it "has resolved its liability to the United States or a State ... in an administrative or judicially approved settlement ... ." 42 U. S. C. §9613(f)(3)(B).
Footnote 6
We do not suggest that §§107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U. S. 809, 816 (1994) (stating the statutes provide "similar and somewhat overlapping remed[ies]"). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under §106 or §107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F. 3d 96, 97 (CA1 1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under §113(f), §107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of §107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under §113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government's argument.
Footnote 7
We assume without deciding that §107(a) provides for joint and several liability.
Footnote 8
Because §107(a) expressly permits PRPs to seek cost recovery, we need not address the alternative holding of the Court of Appeals that §107(a) contains an additional implied right to contribution for PRPs who are not eligible for relief under §113(f). Cf. Cooper Industries, 543 U. S., at 171 (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981)).
12.
WHITMAN, ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY, et al. v. AMERICAN TRUCKING ASSOCIATIONS, INC., et al.
1 certiorari to the united states court of appeals for the district of columbia circuit
No. 99-1257. Argued November 7, 2000--Decided February 27, 20011
Section 109(a) of the Clean Air Act (CAA) requires the Environmental Protection Agency (EPA) Administrator to promulgate national ambient air quality standards (NAAQS) for each air pollutant for which "air quality criteria" have been issued under §108. Pursuant to §109(d)(1), the Administrator in 1997 revised the ozone and particulate matter NAAQS. Respondents in No. 99-1257, private parties and several States (hereinafter respondents), challenged the revised NAAQS on several grounds. The District of Columbia Circuit found that, under the Administrator's interpretation, §109(b)(1)--which instructs the EPA to set standards "the attainment and maintenance of which ... are requisite to protect the public health" with "an adequate margin of safety"--delegated legislative power to the Administrator in contravention of the Federal Constitution, and it remanded the NAAQS to the EPA. The Court of Appeals also declined to depart from its rule that the EPA may not consider implementation costs in setting the NAAQS. And it held that, although certain implementation provisions for the ozone NAAQS contained in Part D, Subpart 2, of Title I of the CAA did not prevent the EPA from revising the ozone standard and designating certain areas as "nonattainment areas," those provisions, rather than more general provisions contained in Subpart 1, constrained the implementation of the new ozone NAAQS. The court rejected the EPA's argument that it lacked jurisdiction to reach the implementation question because there had been no "final" implementation action.
Held:
1. Section 109(b) does not permit the Administrator to consider implementation costs in setting NAAQS. Because the CAA often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provisions. Union Elec. Co. v. EPA, 427 U. S. 246, 257, and n. 5. And since §109(b)(1) is the engine that drives nearly all of Title I of the CAA, the textual commitment of costs must be clear; Congress does not alter a regulatory scheme's fundamental details in vague terms or ancillary provisions, see MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231. Respondents' arguments founder upon this principle. It is implausible that §109(b)(1)'s modest words "adequate margin" and "requisite" give the EPA the power to determine whether implementation costs should moderate national air quality standards. Cf. ibid. And the cost factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would have been expressly mentioned in §§108 and 109 had Congress meant it to be considered. Other CAA provisions, which do require cost data, have no bearing upon whether costs are to be taken into account in setting the NAAQS. Because the text of §109(b)(1) in its context is clear, the canon of construing texts to avoid serious constitutional problems is not applicable. See, e.g., Miller v. French, 530 U. S. 327, 341. Pp. 4-11.
2. Section 109(b)(1) does not delegate legislative power to the EPA. When conferring decisionmaking authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409. An agency cannot cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. The limits that §109(b)(1) imposes on the EPA's discretion are strikingly similar to the ones approved in, e.g., Touby v. United States, 500 U. S. 160, and the scope of discretion that §109(b)(1) allows is well within the outer limits of the Court's nondelegation precedents, see, e.g., Panama Refining Co. v. Ryan, 293 U. S. 388. Statutes need not provide a determinate criterion for saying how much of a regulated harm is too much to avoid delegating legislative power. Pp. 11-15.
3. The Court of Appeals had jurisdiction to consider the implementation issue under §307 of the CAA. The implementation policy constitutes final agency action under §307 of the CAA because it marked the consummation of the EPA's decisionmaking process, see Bennett v. Spear, 520 U. S. 154. The decision is also ripe for review. The question is purely one of statutory interpretation that would not benefit from further factual development, see Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733; review will not interfere with further administrative development; and the hardship on respondent States in developing state implementation plans satisfies the CAA's special judicial-review provision permitting preenforcement review, see id., at 737. The implementation issue was also fairly included within the challenges to the final ozone rule that were before the Court of Appeals, which all parties agree is final agency action ripe for review. Pp. 16-20.
4. The implementation policy is unlawful. Under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, if the statute resolves the question whether Subpart 1 or Subpart 2 applies to revised ozone NAAQS, that ends the matter; but if the statute is ambiguous, the Court must defer to a reasonable agency interpretation. Here, the statute is ambiguous concerning the interaction between Subpart 1 and Subpart 2, but the Court cannot defer to the EPA's interpretation, which would render Subpart 2's carefully designed restrictions on EPA discretion nugatory once a new ozone NAAQS has been promulgated. The principal distinction between the subparts is that Subpart 2 eliminates regulatory discretion allowed by Subpart 1. The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion. In addition, although Subpart 2 was obviously written to govern implementation for some time into the future, nothing in the EPA's interpretation would have prevented the agency from aborting the subpart the day after it was enacted. It is left to the EPA to develop a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS. Pp. 20-25.
175 F. 3d 1027 and 195 F. 3d 4, affirmed in part, reversed in part, and remanded.
Scalia, J., delivered the opinion of the Court, Parts I and IV of which were unanimous, Part II of which was joined by Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., and Part III of which was joined by Rehnquist, C. J., and O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ. Thomas, J., filed a concurring opinion. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al., PETITIONERS
99-1257 v.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al., PETITIONERS
99-1426 v.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al.
2 on writs of certiorari to the united states court of
appeals for the district of columbia circuit
[February 27, 2001]
Justice Scalia delivered the opinion of the Court.
These cases present the following questions: (1) Whether §109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA). (2) Whether the Administrator may consider the costs of implementation in setting national ambient air quality standards (NAAQS) under §109(b)(1). (3) Whether the Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of
Title I of the CAA, 42 U. S. C. §§7501-7515, with respect to implementing the revised ozone NAAQS. (4) If
so, whether the EPA's interpretation of that part was permissible.
I
Section 109(a) of the CAA, as added, 84 Stat. 1679, and amended, 42 U. S. C. §7409(a), requires the Administrator of the EPA to promulgate NAAQS for each air pollutant for which "air quality criteria" have been issued under §108, 42 U. S. C. §7408. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteria on which it is based) "at five-year intervals" and make "such revisions ... as may be appropriate." CAA §109(d)(1), 42 U. S. C. §7409(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter (PM) and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 CFR §50.7 (1999)); NAAQS for Ozone, id., at 38856 (codified in 40 CFR §§50.9, 50.10 (1999)). American Trucking Associations, Inc., and its co-respondents in No. 99-1257--which include, in addition to other private companies, the States of Michigan, Ohio, and West Virginia--challenged the new standards in the Court of Appeals for the District of Columbia Circuit, pursuant to 42 U. S. C. §7607(b)(1).
The District of Columbia Circuit accepted some of the challenges and rejected others. It agreed with the No.
99-1257 respondents (hereinafter respondents) that §109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, §1, because it found that the EPA had interpreted the statute to provide no "intelligible principle" to guide the agency's exercise of authority. American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1034 (1999). The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of §109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. Id., at 1038. (On this delegation point, Judge Tatel dissented, finding the statute constitutional as written. Id., at 1057.) On the second issue that the Court of Appeals addressed, it unanimously rejected respondents' argument that the court should depart from the rule of Lead Industries Assn., Inc. v. EPA, 647 F. 2d 1130, 1148 (CADC 1980), that the EPA may not consider the cost of implementing a NAAQS in setting the initial standard. It also rejected respondents' argument that the implementation provisions for ozone found in Part D, Subpart 2, of Title I of the CAA, 42 U. S. C. §§7511-7511f, were so tied to the existing ozone standard that the EPA lacked the power to revise the standard. The court held that although Subpart 2 constrained the agency's method of implementing the new standard, 175 F. 3d, at 1050, it did not prevent the EPA from revising the standard and designating areas of the country as "nonattainment areas," see 42 U. S. C. §7407(d)(1), by reference to it, 175 F. 3d, at 1047-1048. On the EPA's petition for rehearing, the panel adhered to its position on these points, and unanimously rejected the EPA's new argument that the court lacked jurisdiction to reach the implementation question because there had been no "final" implementation action. American Trucking Assns., Inc. v. EPA, 195 F. 3d 4 (CADC 1999). The Court of Appeals denied the EPA's suggestion for rehearing en banc, with five judges dissenting. Id., at 13.
The Administrator and the EPA petitioned this Court for review of the first, third, and fourth questions described in the first paragraph of this opinion. Respondents conditionally cross-petitioned for review of the second question. We granted certiorari on both petitions, 529 U. S. 1129 (2000); 530 U. S. 1202 (2000), and scheduled the cases for argument in tandem. We have now consolidated the cases for purposes of decision.
II
In Lead Industries Assn., Inc. v. EPA, supra, at 1148, the District of Columbia Circuit held that "economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109" of the CAA. In the present cases, the court adhered to that holding, 175 F. 3d, at 1040-1041, as it had done on many other occasions. See, e.g., American Lung Assn. v. EPA, 134 F. 3d 388, 389 (1998); NRDC v. Administrator, EPA, 902 F. 2d 962, 973 (1990), vacated in part on other grounds, NRDC v. EPA, 921 F. 2d 326 (CADC 1991); American Petroleum Institute v. Costle, 665 F. 2d 1176, 1185 (1981). Respondents argue that these decisions are incorrect. We disagree; and since the first step in assessing whether a statute delegates legislative power is to determine what authority the statute confers, we address that issue of interpretation first and reach respondents' constitutional arguments in Part III, infra.
Section 109(b)(1) instructs the EPA to set primary ambient air quality standards "the attainment and maintenance of which ... are requisite to protect the public health" with "an adequate margin of safety." 42 U. S. C. §7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, "is absolute." D. Currie, Air Pollution: Federal Law and Analysis 4-15 (1981). The EPA, "based on" the information about health effects contained in the technical "criteria" documents compiled under §108(a)(2), 42 U. S. C. §7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an "adequate" margin of safety, and set the standard at that level. Nowhere are the costs
of achieving such a standard made part of that initial calculation.
Against this most natural of readings, respondents make a lengthy, spirited, but ultimately unsuccessful attack. They begin with the object of §109(b)(1)'s focus, the "public health." When the term first appeared in federal clean air legislation--in the Act of July 14, 1955 (1955 Act), 69 Stat. 322, which expressed "recognition of the dangers to the public health" from air pollution--its ordinary meaning was "[t]he health of the community." Webster's New International Dictionary 2005 (2d ed. 1950). Respondents argue, however, that §109(b)(1), as added by the Clean Air Amendments of 1970 (1970 Act), 84 Stat. 1676, meant to use the term's secondary meaning: "[t]he ways and means of conserving the health of the members of a community, as by preventive medicine, organized care of the sick, etc." Ibid. Words that can have more than one meaning are given content, however, by their surroundings, FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132-133 (2000); Jones v. United States, 527 U. S. 373, 389 (1999), and in the context of §109(b)(1) this second definition makes no sense. Congress could not have meant to instruct the Administrator to set NAAQS at a level "requisite to protect" "the art and science dealing with the protection and improvement of community health." Webster's Third New International Dictionary 1836 (1981). We therefore revert to the primary definition of the term: the health of the public.
Even so, respondents argue, many more factors than air pollution affect public health. In particular, the economic cost of implementing a very stringent standard might produce health losses sufficient to offset the health gains achieved in cleaning the air--for example, by closing down whole industries and thereby impoverishing the workers and consumers dependent upon those industries. That is unquestionably true, and Congress was unquestionably aware of it. Thus, Congress had commissioned in the Air Quality Act of 1967 (1967 Act) "a detailed estimate of the cost of carrying out the provisions of this Act; a comprehensive study of the cost of program implementation by affected units of government; and a comprehensive study of the economic impact of air quality standards on the Nation's industries, communities, and other contributing sources of pollution." §2, 81 Stat. 505. The 1970 Congress, armed with the results of this study, see The Cost of Clean Air, S. Doc. No. 91-40 (1969) (publishing the results of the study), not only anticipated that compliance costs could injure the public health, but provided for that precise exigency. Section 110(f)(1) of the CAA permitted the Administrator to waive the compliance deadline for stationary sources if, inter alia, sufficient control measures were simply unavailable and "the continued operation of such sources is essential ... to the public health or welfare." 84 Stat. 1683 (emphasis added). Other provisions explicitly permitted or required economic costs to be taken into account in implementing the air quality standards. Section 111(b)(1)(B), for example, commanded the Administrator to set "standards of performance" for certain new sources of emissions that as specified in §111(a)(1) were to "reflec[t] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." Section 202(a)(2) prescribed that emissions standards for automobiles could take effect only "after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period." 84 Stat. 1690. See also §202(b)(5)(C) (similar limitation for interim standards); §211(c)(2) (similar limitation for fuel additives); §231(b) (similar limitation for implementation of aircraft emission standards). Subsequent amendments to the CAA have added many more provisions directing, in explicit language, that the Administrator consider costs in performing various duties. See, e.g., 42 U. S. C. §7545(k)(1) (reformulate gasoline to "require the greatest reduction in emissions ... taking into consideration the cost of achieving such emissions reductions"); §7547(a)(3) (emission reduction for nonroad vehicles to be set "giving appropriate consideration to the cost" of the standards). We have therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted. See Union Elec. Co. v. EPA, 427 U. S. 246, 257, and n. 5 (1976). Cf. General Motors Corp. v. United States, 496 U. S. 530, 538, 541 (1990) (refusing to infer in certain provisions of the CAA deadlines and enforcement limitations that had been expressly imposed elsewhere).
Accordingly, to prevail in their present challenge, respondents must show a textual commitment of authority to the EPA to consider costs in setting NAAQS under §109(b)(1). And because §109(b)(1) and the NAAQS for which it provides are the engine that drives nearly all of Title I of the CAA, 42 U. S. C. §§7401-7515, that textual commitment must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions--it does not, one might say, hide elephants in mouseholes. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., supra, at 159-160. Respondents' textual arguments ultimately founder upon this principle.
Their first claim is that §109(b)(1)'s terms "adequate margin" and "requisite" leave room to pad health effects with cost concerns. Just as we found it "highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion--and even more unlikely that it would achieve that through such a subtle device as permission to `modify' rate-filing requirements," MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 231, so also we find it implausible that Congress would give to the EPA through these modest words the power to determine whether implementation costs should moderate national air quality standards. Accord Christensen v. Harris County, 529 U. S. 576, 590, n. (2000) (Scalia, J., concurring in part and concurring in judgment) ("The implausibility of Congress's leaving a highly significant issue unaddressed (and thus `delegating' its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity" (emphasis deleted)).1
The same defect inheres in respondents' next two arguments: that while the Administrator's judgment about what is requisite to protect the public health must be "based on [the] criteria" documents developed under §108(a)(2), see §109(b)(1), it need not be based solely on those criteria; and that those criteria themselves, while they must include "effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air," are not necessarily limited to those effects. Even if we were to concede those premises, we still would not conclude that one of the unenumerated factors that the agency can consider in developing and applying the criteria is cost of implementation. That factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in §§108 and 109 had Congress meant it to be considered. Yet while those provisions describe in detail how the health effects of pollutants in the ambient air are to be calculated and given effect, see §108(a)(2), they say not a word about costs.
Respondents point, finally, to a number of provisions in the CAA that do require attainment cost data to be generated. Section 108(b)(1), for example, instructs the Administrator to "issue to the States," simultaneously with the criteria documents, "information on air pollution control techniques, which information shall include data relating to the cost of installation and operation." 42 U. S. C. §7408(b)(l). And §109(d)(2)(C)(iv) requires the Clean Air Scientific Advisory Committee to "advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance" of NAAQS.2 42 U. S. C. §7409(d)(2)(C)(iv). Respondents argue that these provisions make no sense unless costs are to be considered in setting the NAAQS. That is not so. These provisions enable the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS. It is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. See 42 U. S. C. §§7407(a), 7410 (giving States the duty of developing implementation plans). It would be impossible to perform that task intelligently without considering which abatement technologies are most efficient, and most economically feasible--which is why we have said that "the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan," Union Elec. Co. v. EPA, 427 U. S., at 266. Thus, federal clean air legislation has, from the very beginning, directed federal agencies to develop and transmit implementation data, including cost data, to the States. See 1955 Act, §2(b), 69 Stat. 322; Clean Air Act of 1963, amending §§3(a), (b) of the CAA, 77 Stat. 394; 1967 Act, §§103(a)-(d), 104, 107(c), 81 Stat. 486-488. That Congress chose to carry forward this research program to assist States in choosing the means through which they would implement the standards is perfectly sensible, and has no bearing upon whether cost considerations are to be taken into account in formulating the standards.3
It should be clear from what we have said that the canon requiring texts to be so construed as to avoid serious constitutional problems has no application here. No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text. See, e.g., Miller v. French, 530 U. S. 327, 341 (2000); Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998). The text of §109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA.4 We therefore affirm the judgment of the Court of Appeals on this point.
III
Section 109(b)(1) of the CAA instructs the EPA to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of §108] and allowing an adequate margin of safety, are requisite to protect the public health." 42 U. S. C. §7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an "intelligible principle" to guide the EPA's exercise of authority in setting NAAQS. "[The] EPA," it said, "lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much." 175 F. 3d, at 1034. The court hence found that the EPA's interpretation (but not the statute itself) violated the nondelegation doctrine. Id., at 1038. We disagree.
In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, §1, of the Constitution vests "[a]ll legislative Powers herein granted ... in a Congress of the United States." This text permits no delegation of those powers, Loving v. United States, 517 U. S. 748, 771 (1996); see id., at 776-777 (Scalia, J., concurring in part and concurring in judgment), and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee, 332 U. S. 245, 252-253 (1947), and Lichter v. United States, 334 U. S. 742, 783 (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, ibid., and Fahey because the customary practices in the area, implicitly incorporated into the statute, were reflected in the regulations. 332 U. S., at 250. The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer.
We agree with the Solicitor General that the text of §109(b)(1) of the CAA at a minimum requires that "[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air." Tr. of Oral Arg. in No. 99-1257, p. 5. Requisite, in turn, "mean[s] sufficient, but not more than necessary." Id., at 7. These limits on the EPA's discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U. S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was " `necessary to avoid an imminent hazard to the public safety.' " Id., at 163. They also resemble the Occupational Safety and Health Act provision requiring the agency to " `set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health' "--which the Court upheld in Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980), and which even then-Justice Rehnquist, who alone in that case thought the statute violated the nondelegation doctrine, see id., at 671 (opinion concurring in judgment), would have upheld if, like the statute here, it did not permit economic costs to be considered. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 545 (1981) (Rehnquist, J., dissenting).
The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite "intelligible principle" lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring "fair competition." See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). We have, on the other hand, upheld the validity of §11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not "unduly or unnecessarily complicate[d]" and do not "unfairly or inequitably distribute voting power among security holders." American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that " `will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.' " Yakus v. United States, 321 U. S. 414, 420, 423-426 (1944). And we have found an "intelligible principle" in various statutes authorizing regulation in the "public interest." See, e.g., National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943) (FCC's power to regulate airwaves); New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25 (1932) (ICC's power to approve railroad consolidations). In short, we have "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Mistretta v. United States, 488 U. S. 361, 416 (1989) (Scalia, J., dissenting); see id., at 373 (majority opinion).
It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States, supra, at 772-773; United States v. Mazurie, 419 U. S. 544, 556-557 (1975). While Congress need not provide any direction to the EPA regarding the manner in which it is to define "country elevators," which are to be exempt from new-stationary-source regulations governing grain elevators, see §7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a "determinate criterion" for saying "how much [of the regulated harm] is too much." 175 F. 3d, at 1034. In Touby, for example, we did not require the statute to decree how "imminent" was too imminent, or how "necessary" was necessary enough, or even--most relevant here--how "hazardous" was too hazardous. 500 U. S., at 165-167. Similarly, the statute at issue in Lichter authorized agencies to recoup "excess profits" paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. 334 U. S., at 783-786. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are "nonthreshold" pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. "[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action." Mistretta v. United States, supra, at 417 (Scalia, J., dissenting) (emphasis deleted); see 488 U. S., at 378-379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is "requisite"--that is, not lower or higher than is necessary--to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.
We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appeals--on the remand that we direct for other reasons--to dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U. S. C. §7607(d)(9).
IV
The final two issues on which we granted certiorari concern the EPA's authority to implement the revised ozone NAAQS in areas whose ozone levels currently exceed the maximum level permitted by that standard. The CAA designates such areas "nonattainment," §107(d)(1), 42 U. S. C. §7407(d)(1); see also Pub. L. 105-178, §6103, 112 Stat. 465 (setting timeline for new ozone designations), and it exposes them to additional restrictions over and above the implementation requirements imposed generally by §110 of the CAA. These additional restrictions are found in the five substantive subparts of Part D of Title I, 42 U. S. C. §§7501-7515. Subpart 1, §§7501-7509a, contains general nonattainment regulations that pertain to every pollutant for which a NAAQS exists. Subparts 2 through 5, §§7511-7514a, contain rules tailored to specific individual pollutants. Subpart 2, added by the Clean Air Act Amendments of 1990, §103, 104 Stat. 2423, addresses ozone. 42 U. S. C. §§7511-7511f. The dispute before us here, in a nutshell, is whether Subpart 1 alone (as the agency determined), or rather Subpart 2 or some combination of Subparts 1 and 2, controls the implementation of the revised ozone NAAQS in nonattainment areas.
A
The Administrator first urges, however, that we vacate the judgment of the Court of Appeals on this issue because it lacked jurisdiction to review the EPA's implementation policy. Section 307(b)(1) of the CAA, 42 U. S. C. §7607(b)(1), gives the court jurisdiction over "any ... nationally applicable regulations promulgated, or final action taken, by the Administrator," but the EPA argues that its implementation policy was not agency "action," was not "final" action, and is not ripe for review. We reject each of these three contentions.
At the same time the EPA proposed the revised ozone NAAQS in 1996, it also proposed an "interim implementation policy" for the NAAQS, see 61 Fed. Reg. 65752 (1996), that was to govern until the details of implementation could be put in final form through specific "rulemaking actions." The preamble to this proposed policy declared that "the interim implementation policy ... represent[s] EPA's preliminary views on these issues and, while it may include various statements that States must take certain actions, these statements are made pursuant to EPA's preliminary interpretations, and thus do not bind the States and public as a matter of law." Ibid. If the EPA had done no more, we perhaps could accept its current claim that its action was not final. However, after the agency had accepted comments on its proposed policy, and on the same day that the final ozone NAAQS was promulgated, the White House published in the Federal Register what it titled a "Memorandum for the Administrator of the Environmental Protection Agency" that prescribed implementation procedures for the EPA to follow. 62 Fed. Reg. 38421 (1997). (For purposes of our analysis we shall assume that this memorandum was not itself action by the EPA.) The EPA supplemented this memorandum with an explanation of the implementation procedures, which it published in the explanatory preamble to its final ozone NAAQS under the heading, "Final decision on the primary standard." Id., at 38873. "In light of comments received regarding the interpretation proposed in the Interim Implementation Policy," the EPA announced, it had "reconsidered that interpretation" and settled on a new one. Ibid. The provisions of "subpart 1 of part D of Title I of the Act" will immediately "apply to the implementation of the new 8-hour [ozone] standards." Ibid.; see also id., at 38885 (new standard to be implemented "simultaneously [with the old standard] ... under the provisions of ... subpart 1"). Moreover, the provisions of subpart 2 "will [also] continue to apply as a matter of law for so long as an area is not attaining the [old] 1-hour standard." Id., at 38873. Once the area reaches attainment for the old standard, however, "the provisions of subpart 2 will have been achieved and those provisions will no longer apply." Ibid.; see also id., at 38884-38885.
We have little trouble concluding that this constitutes final agency action subject to review under §307. The bite in the phrase "final action" (which bears the same meaning in §307(b)(1) that it does under the Administrative Procedure Act (APA) 5 U. S. C. §704, see Harrison v. PPG Industries, Inc., 446 U. S. 578, 586 (1980)) is not in the word "action," which is meant to cover comprehensively every manner in which an agency may exercise its power. See FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 238, n. 7 (1980). It is rather in the word "final," which requires that the action under review "mark the consummation of the agency's decisionmaking process." Bennett v. Spear, 520 U. S. 154, 177-178 (1997). Only if the "EPA has rendered its last word on the matter" in question, Harrison v. PPG Industries, Inc., supra, at 586, is its action "final" and thus reviewable. That standard is satisfied here. The EPA's "decisionmaking process," which began with the 1996 proposal and continued with the reception of public comments, concluded when the agency, "in light of [these comments]," and in conjunction with a corresponding directive from the White House, adopted the interpretation of Part D at issue here. Since that interpretation issued, the EPA has refused in subsequent rulemakings to reconsider it, explaining to disappointed commenters that its earlier decision was conclusive. See 63 Fed. Reg. 31014, 31018-31019 (1998). Though the agency has not dressed its decision with the conventional procedural accoutrements of finality, its own behavior thus belies the claim that its interpretation is not final.
The decision is also ripe for our review. "Ripeness `requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.' " Texas v. United States, 523 U. S. 296, 300-301 (1998) (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). The question before us here is purely one of statutory interpretation that would not "benefit from further factual development of the issues presented." Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998). Nor will our review "inappropriately interfere with further administrative action," ibid., since the EPA has concluded its consideration of the implementation issue. Finally, as for hardship to the parties: The respondent States must--on pain of forfeiting to the EPA control over implementation of the NAAQS--promptly undertake the lengthy and expensive task of developing state implementation plans (SIP's) that will attain the new, more stringent standard within five years. See 42 U. S. C. §§7410, 7502. Whether or not this would suffice in an ordinary case brought under the review provisions of the APA, see 5 U. S. C. §704, we have characterized the special judicial-review provision of the CAA, 42 U. S. C. §7607(b), as one of those statutes that specifically provides for "preenforcement" review, see Ohio Forestry Assn., Inc. v. Sierra Club, supra, at 737. Such statutes, we have said, permit "judicial review directly, even before the concrete effects normally required for APA review are felt." Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990). The effects at issue here surely meet that lower standard.
Beyond all this, the implementation issue was fairly included within the challenges to the final ozone rule that were properly before the Court of Appeals. Respondents argued below that the EPA could not revise the ozone standard, because to do so would trigger the use of Subpart 1, which had been supplanted (for ozone) by the specific rules of Subpart 2. Brief for Industry Petitioners and Intervenors in No. 97-1441 (and consolidated cases) (CADC), pp. 32-34. The EPA responded that Subpart 2 did not supplant but simply supplemented Subpart 1, so that the latter section still "applies to all nonattainment areas for all NAAQS, ... including nonattainment areas for any revised ozone standard." Final Brief for EPA in No. 97-1441 (and consolidated cases) (CADC), pp. 67-68. The agency later reiterated that Subpart 2 "does not supplant implementation provisions for revised ozone standards. This interpretation fully harmonizes Subpart 2 with EPA's clear authority to revise any NAAQS." Id., at 71. In other words, the EPA was arguing that the revised standard could be issued, despite its apparent incompatibility with portions of Subpart 2, because it would be implemented under Subpart 1 rather than Subpart 2. The District of Columbia Circuit ultimately agreed that Subpart 2 could be harmonized with the EPA's authority to promulgate revised NAAQS, but not because Subpart 2 is entirely inapplicable--which is one of EPA's assignments of error. It is unreasonable to contend, as the EPA now does, that the Court of Appeals was obligated to reach the agency's preferred result, but forbidden to assess the reasons the EPA had given for reaching that result. The implementation issue was fairly included within respondents' challenge to the ozone rule, which all parties agree is final agency action ripe for review.
B
Our approach to the merits of the parties' dispute is the familiar one of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). If the statute resolves the question whether Subpart 1 or Subpart 2 (or some combination of the two) shall apply to revised ozone NAAQS, then "that is the end of the matter." Id., at 842-843. But if the statute is "silent or ambiguous" with respect to the issue, then we must defer to a "reasonable interpretation made by the administrator of an agency." Id., at 844. We cannot agree with the Court of Appeals that Subpart 2 clearly controls the implementation of revised ozone NAAQS, see 175 F. 3d, at 1048-1050, because we find the statute to some extent ambiguous. We conclude, however, that the agency's interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear. We therefore hold the implementation policy unlawful. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 392 (1999).
The text of Subpart 1 at first seems to point the way to a clear answer to the question, which Subpart controls? Two sections of Subpart 1, 7502(a)(1)(C) and 7502(a)(2)(D), contain switching provisions stating that if the classification of ozone nonattainment areas is "specifically provided [for] under other provisions of [Part D]," then those provisions will control instead of Subpart 1's. Thus it is true but incomplete to note, as the Administrator does, that the substantive language of Subpart 1 is broad enough to apply to revised ozone standards. See, e.g., §7502(a)(1)(A) (instructing the Administrator to classify nonattainment areas according to "any revised standard, including a revision of any standard in effect on November 15, 1990"); §7502(a)(2)(A) (setting attainment deadlines). To determine whether that language does apply one must resolve the further textual issue whether some other provision, namely Subpart 2, provides for the classification of ozone nonattainment areas. If it does, then according to the switching provisions of Subpart 1 it will control.
So, does Subpart 2 provide for classifying nonattainment ozone areas under the revised standard? It unquestionably does. The backbone of the subpart is Table 1, printed in §7511(a)(1) and reproduced in the margin here,5 which defines five categories of ozone nonattainment areas and prescribes attainment deadlines for each. Section 7511(a)(1) funnels all nonattainment areas into the table for classification, declaring that "[e]ach area designated nonattainment for ozone ... shall be classified at the time of such designation, under table 1, by operation of law." And once an area has been classified, "the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1." The EPA argues that this text is not as clear or comprehensive as it seems, because the title of §7511(a) reads "Classification and attainment dates for 1989 nonattainment areas," which suggests that Subpart 2 applies only to areas that were in nonattainment in 1989, and not to areas later designated nonattainment under a revised ozone standard. The suggestion must be rejected, however, because §7511(b)(1) specifically provides for the classification of areas that were in attainment in 1989 but have subsequently slipped into nonattainment. It thus makes clear that Subpart 2 is not limited solely to 1989 nonattainment areas. This eliminates the interpretive role of the title, which may only "she[d] light on some ambiguous word or phrase in the statute itself," Carter v. United States, 530 U. S. 255, 267 (2000) (internal quotation marks omitted) (quoting Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S., at 212, in turn quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947)).
It may well be, as the EPA argues--and as the concurring opinion below on denial of rehearing pointed out, see 195 F. 3d, at 11-12--that some provisions of Subpart 2 are ill fitted to implementation of the revised standard. Using the old 1-hour averages of ozone levels, for example, as Subpart 2 requires, see §7511(a)(1); 44 Fed. Reg. 8202 (1979), would produce at best an inexact estimate of the new 8-hour averages, see 40 CFR §50.10, and App. I (1999). Also, to the extent that the new ozone standard is stricter than the old one, see Reply Brief for Petitioners in No. 99-1257, p. 17 ("the stricter 8-hour NAAQS"); 62 Fed. Reg. 38856, 38858 (1997) (8-hour standard of 0.09 ppm rather than 0.08 ppm would have "generally represent[ed] the continuation of the [old] level of protection"), the classification system of Subpart 2 contains a gap, because it fails to classify areas whose ozone levels are greater than the new standard (and thus nonattaining) but less than the approximation of the old standard codified by Table 1. And finally, Subpart 2's method for calculating attainment dates--which is simply to count forward a certain number of years from November 15, 1990 (the date the 1990 CAA Amendments took force), depending on how far out of attainment the area started--seems to make no sense for areas that are first classified under a new standard after November 15, 1990. If, for example, areas were classified in the year 2000, many of the deadlines would already have expired at the time of classification.
These gaps in Subpart 2's scheme prevent us from concluding that Congress clearly intended Subpart 2 to be the exclusive, permanent means of enforcing a revised ozone standard in nonattainment areas. The statute is in our view ambiguous concerning the manner in which Subpart 1 and Subpart 2 interact with regard to revised ozone standards, and we would defer to the EPA's reasonable resolution of that ambiguity. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S., at 132; INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999). We cannot defer, however, to the interpretation the EPA has given.
Whatever effect may be accorded the gaps in Subpart 2 as implying some limited applicability of Subpart 1, they cannot be thought to render Subpart 2's carefully designed restrictions on EPA discretion utterly nugatory once a new standard has been promulgated, as the EPA has concluded. The principal distinction between Subpart 1 and Subpart 2 is that the latter eliminates regulatory discretion that the former allowed. While Subpart 1 permits the EPA to establish classifications for nonattainment areas, Subpart 2 classifies areas as a matter of law based on a table. Compare §7502(a)(1) with §7511(a)(1) (Table 1). Whereas the EPA has discretion under Subpart 1 to extend attainment dates for as long as 12 years, under Subpart 2 it may grant no more than 2 years' extension. Compare §§7502(a)(2)(A) and (C) with §7511(a)(5). Whereas Subpart 1 gives the EPA considerable discretion to shape nonattainment programs, Subpart 2 prescribes large parts of them by law. Compare §7502(c) and (d) with §7511a. Yet according to the EPA, Subpart 2 was simply Congress's "approach to the implementation of the [old] 1-hour" standard, and so there was no reason that "the new standard could not simultaneously be implemented under ... subpart 1." 62 Fed. Reg. 38856, 38885 (1997); see also id., at 38873 ("the provisions of subpart 1 ... would apply to the implementation of the new 8-hour ozone standards"). To use a few apparent gaps in Subpart 2 to render its textually explicit applicability to nonattainment areas under the new standard utterly inoperative is to go over the edge of reasonable interpretation. The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.
The EPA's interpretation making Subpart 2 abruptly obsolete is all the more astonishing because Subpart 2 was obviously written to govern implementation for some time. Some of the elements required to be included in SIP's under Subpart 2 were not to take effect until many years after the passage of the Act. See §7511a(e)(3) (restrictions on "electric utility and industrial and commercial boiler[s]" to be "effective 8 years after November 15, 1990"); §7511a(c)(5)(A) (vehicle monitoring program to "[b]egi[n] 6 years after November 15, 1990"); §7511a(g)(1) (emissions milestone requirements to be applied "6 years after November 15, 1990, and at intervals of every 3 years thereafter"). A plan reaching so far into the future was not enacted to be abandoned the next time the EPA reviewed the ozone standard--which Congress knew could happen at any time, since the technical staff papers had already been completed in late 1989. See 58 Fed. Reg. 13008, 13010 (1993); see also 42 U. S. C. §7409(d)(1) (NAAQS must be reviewed and, if appropriate, revised at least once every five years). Yet nothing in the EPA's interpretation would have prevented the agency from aborting Subpart 2 the day after it was enacted. Even now, if the EPA's interpretation were correct, some areas of the country could be required to meet the new, more stringent ozone standard in at most the same time that Subpart 2 had allowed them to meet the old standard. Compare §7502(a)(2) (Subpart 1 attainment dates) with §7511(a) (Subpart 2 attainment dates). Los Angeles, for instance, "would be required to attain the revised NAAQS under Subpart 1 no later than the same year that marks the outer time limit for attaining Subpart 2's one-hour ozone standard." Brief for Petitioners in No. 99-1257, p. 49. An interpretation of Subpart 2 so at odds with its structure and manifest purpose cannot be sustained.
We therefore find the EPA's implementation policy to be unlawful, though not in the precise respect determined by the Court of Appeals. After our remand, and the Court of Appeals' final disposition of this case, it is left to the EPA to develop a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS.
* * *
To summarize our holdings in these unusually complex cases: (1) The EPA may not consider implementation costs in setting primary and secondary NAAQS under §109(b) of the CAA. (2) Section 109(b)(1) does not delegate legislative power to the EPA in contravention of Art. I, §1, of the Constitution. (3) The Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, relating to the implementation of the revised ozone NAAQS. (4) The EPA's interpretation of that Part is unreasonable.
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for proceedings consistent with this opinion.
It is so ordered.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al., PETITIONERS
99-1257 v.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al., PETITIONERS
99-1426 v.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al.
1 on writs of certiorari to the united states court of
appeals for the district of columbia circuit
[February 27, 2001]
Justice Thomas, concurring.
I agree with the majority that §109's directive to the agency is no less an "intelligible principle" than a host of other directives that we have approved. Ante, at 13-15. I also agree that the Court of Appeals' remand to the agency to make its own corrective interpretation does not accord with our understanding of the delegation issue. Ante, at 12. I write separately, however, to express my concern that there may nevertheless be a genuine constitutional problem with §109, a problem which the parties did not address.
The parties to this case who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, §1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."
As it is, none of the parties to this case has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al., PETITIONERS
99-1257 v.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al., PETITIONERS
99-1426 v.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al.
2 on writs of certiorari to the united states court of
appeals for the district of columbia circuit
[February 27, 2001]
Justice Stevens, with whom Justice Souter joins, concurring in part and concurring in the judgment.
Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, ante, at 11-15, the Court convincingly explains why the Court of Appeals erred when it concluded that §109 effected "an unconstitutional delegation of legislative power." American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1033 (CADC 1999) (per curiam). I wholeheartedly endorse the Court's result and endorse its explanation of its reasons, albeit with the
following caveat.
The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is "legislative" but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not "legislative power." Despite the fact that there is language in our opinions that supports the Court's articulation of our holding,1 I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is "legislative power."2
The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black's Law Dictionary 899 (6th ed. 1990) (defining "legislation" as, inter alia, "[f]ormulation of rule[s] for the future"); 1 K. Davis & R. Pierce, Administrative Law Treatise §2.3, p. 37 (3d ed. 1994) ("If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by promulgating what are candidly called `legislative rules' "). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of "legislative power." The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.
My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested "All legislative Powers" in the Congress, Art. I., §1, just as in Article II they vested the "executive Power" in the President, Art. II, §1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar, 478 U. S. 714, 752 (1986) (Stevens, J., concurring in judgment) ("Despite the statement in Article I of the Constitution that `All legislative powers herein granted shall be vested in a Congress of the United States,' it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers"); INS v. Chadha, 462 U. S. 919, 985-986 (1983) (White, J., dissenting) ("[L]egislative power can be exercised by independent agencies and Executive departments ..."); 1 Davis §2.6, p. 66 ("The Court was probably mistaken from the outset in interpreting Article I's grant of power to Congress as an implicit limit on Congress' authority to delegate legislative power"). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as "Executive" even though not exercised by the President. Cf. Morrison v. Olson, 487 U. S. 654, 705-706 (1988) (Scalia, J., dissenting) (arguing that the independent counsel exercised "executive power" unconstrained by the President).
It seems clear that an executive agency's exercise of rulemaking authority pursuant to a valid delegation from Congress is "legislative." As long as the delegation provides a sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court's opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted §109, it effected a constitutional delegation of legislative power to the EPA.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al., PETITIONERS
99-1257 v.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al.
AMERICAN TRUCKING ASSOCIATIONS,
INC., et al., PETITIONERS
99-1426 v.
CHRISTINE TODD WHITMAN, ADMINISTRATOR
OF ENVIRONMENTAL PROTECTION
AGENCY, et al.
3 on writs of certiorari to the united states court of
appeals for the district of columbia circuit
[February 27, 2001]
Justice Breyer, concurring in part and concurring in the judgment.
I join Parts I, III, and IV of the Court's opinion. I also agree with the Court's determination in Part II that the Clean Air Act does not permit the Environmental Protection Agency to consider the economic costs of implementation when setting national ambient air quality standards under §109(b)(1) of the Act. But I would not rest this conclusion solely upon §109's language or upon a presumption, such as the Court's presumption that any authority the Act grants the EPA to consider costs must flow from a "textual commitment" that is "clear." Ante, at 7. In order better to achieve regulatory goals--for example, to allocate resources so that they save more lives or produce a cleaner environment--regulators must often take account of all of a proposed regulation's adverse effects, at least where those adverse effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation.
In this case, however, other things are not equal. Here, legislative history, along with the statute's structure, indicates that §109's language reflects a congressional decision not to delegate to the agency the legal authority to consider economic costs of compliance.
For one thing, the legislative history shows that Congress intended the statute to be "technology forcing." Senator Edmund Muskie, the primary sponsor of the 1970 amendments to the Act, introduced them by saying that Congress' primary responsibility in drafting the Act was not "to be limited by what is or appears to be technologically or economically feasible," but "to establish what the public interest requires to protect the health of persons," even if that means that "industries will be asked to do what seems to be impossible at the present time." 116 Cong. Rec. 32901-32902 (1970), 1 Legislative History of the Clean Air Amendments of 1970 (Committee Report compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18, p. 227 (1974) (hereinafter Leg. Hist.) (emphasis added).
The Senate directly focused upon the technical feasibility and cost of implementing the Act's mandates. And it made clear that it intended the Administrator to develop air quality standards set independently of either. The Senate Report for the 1970 amendments explains:
"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), 1 Leg. Hist. 402-403 (emphasis added).
Indeed, this Court, after reviewing the entire legislative history, concluded that the 1970 amendments were "expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible." Union Elec. Co. v. EPA, 427 U. S. 246, 257 (1976) (emphasis added). And the Court added that the 1970 amendments were intended to be a "drastic remedy to . . . a serious and otherwise uncheckable problem." Id., at 256. Subsequent legislative history confirms that the technology-forcing goals of the 1970 amendments are still paramount in today's Act. See Clean Air Conference Report (1977): Statement of Intent; Clarification of Select Provisions, 123 Cong. Rec. 27070 (1977) (stating, regarding the 1977 amendments to the Act, that "this year's legislation retains and even strengthens the technology forcing . . . goals of the 1970 Act"); S. Rep. No. 101-228, p. 5 (1989) (stating that the 1990 amendments to the Act require ambient air quality standards to be set at "the level that `protects the public health' with an `adequate margin of safety,' without regard to the economic or technical feasibility of attainment" (emphasis added)).
To read this legislative history as meaning what it says does not impute to Congress an irrational intent. Technology-forcing hopes can prove realistic. Those persons, for example, who opposed the 1970 Act's insistence on a 90% reduction in auto emission pollutants, on the ground of excessive cost, saw the development of catalytic converter technology that helped achieve substantial reductions without the economic catastrophe that some had feared. See §6(a) of the Clean Air Act Amendments of 1970, amending §§202(b)(1)(A), (B), 84 Stat. 1690 (codified at 42 U. S. C. §§7521(b)(1)(A), (B)) (requiring a 90% reduction in emissions); 1 Leg. Hist. 238, 240 (statement of Sen. Griffin) (arguing that the emissions standards could "force [the automobile] industry out of existence" because costs "would not be taken into account"); see generally Reitze, Mobile Source Air Pollution Control, 6 Envtl. Law. 309, 326-327 (2000) (discussing the development of the catalytic converter).
At the same time, the statute's technology-forcing objective makes regulatory efforts to determine the costs of implementation both less important and more difficult. It means that the relevant economic costs are speculative, for they include the cost of unknown future technologies. It also means that efforts to take costs into account can breed time-consuming and potentially unresolvable arguments about the accuracy and significance of cost estimates. Congress could have thought such efforts not worth the delays and uncertainties that would accompany them. In any event, that is what the statute's history seems to say. See Union Elec., supra, at 256-259. And the matter is one for Congress to decide.
Moreover, the Act does not, on this reading, wholly ignore cost and feasibility. As the majority points out, ante, at 6-7, the Act allows regulators to take those concerns into account when they determine how to implement ambient air quality standards. Thus, States may consider economic costs when they select the particular control devices used to meet the standards, and industries experiencing difficulty in reducing their emissions can seek an exemption or variance from the state implementation plan. See Union Elec., supra, at 266 ("[T]he most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan").
The Act also permits the EPA, within certain limits, to consider costs when it sets deadlines by which areas must attain the ambient air quality standards. 42 U. S. C. §7502(a)(2)(A) (providing that "the Administrator may extend the attainment date . . . for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures"); §7502(a)(2)(C) (permitting the Administrator to grant up to two additional 1-year extensions); cf. §§7511(a)(1), (5) (setting more rigid attainment deadlines for areas in nonattainment of the ozone standard, but permitting the Administrator to grant up to two 1-year extensions). And Congress can change those statutory limits if necessary. Given the ambient air quality standards' substantial effects on States, cities, industries, and their suppliers and customers, Congress will hear from those whom compliance deadlines affect adversely, and Congress can consider whether legislative change is warranted. See, e.g., Steel Industry Compliance Extension Act of 1981, 95 Stat. 139 (codified at 42 U. S. C. §7413(e) (1988 ed.)) (repealed 1990) (granting the Administrator discretion to extend the ambient air quality standard attainment date set in the 1977 Act by up to three years for steelmaking facilities).
Finally, contrary to the suggestion of the Court of Appeals and of some parties, this interpretation of §109 does not require the EPA to eliminate every health risk, however slight, at any economic cost, however great, to the point of "hurtling" industry over "the brink of ruin," or even forcing "deindustrialization." American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1037, 1038, n. 4 (CADC 1999); see also Brief for Cross-Petitioners in No. 99-1426, p. 25. The statute, by its express terms, does not compel the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient air quality standards ruinous to industry.
Section 109(b)(1) directs the Administrator to set standards that are "requisite to protect the public health" with "an adequate margin of safety." But these words do not describe a world that is free of all risk--an impossible and undesirable objective. See Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 642 (1980) (plurality opinion) (the word "safe" does not mean "risk-free"). Nor are the words "requisite" and "public health" to be understood independent of context. We consider football equipment "safe" even if its use entails a level of risk that would make drinking water "unsafe" for consumption. And what counts as "requisite" to protecting the public health will similarly vary with background circumstances, such as the public's ordinary tolerance of the particular health risk in the particular context at issue. The Administrator can consider such background circumstances when "decid[ing] what risks are acceptable in the world in which we live." Natural Resources Defense Council, Inc. v. EPA, 824 F. 2d 1146, 1165 (CADC 1987).
The statute also permits the Administrator to take account of comparative health risks. That is to say, she may consider whether a proposed rule promotes safety overall. A rule likely to cause more harm to health than it prevents is not a rule that is "requisite to protect the public health." For example, as the Court of Appeals held and the parties do not contest, the Administrator has the authority to determine to what extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed, helps prevent cataracts and skin cancer) should be taken into account in setting the ambient air quality standard for ozone. See 175 F. 3d, at 1050-1053 (remanding for the Administrator to make that determination).
The statute ultimately specifies that the standard set must be "requisite to protect the public health" "in the judgment of the Administrator," §109(b)(1), 84 Stat. 1680 (emphasis added), a phrase that grants the Administrator considerable discretionary standard-setting authority.
The statute's words, then, authorize the Administrator to consider the severity of a pollutant's potential adverse health effects, the number of those likely to be affected, the distribution of the adverse effects, and the uncertainties surrounding each estimate. Cf. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 364 (1999). They permit the Administrator to take account of comparative health consequences. They allow her to take account of context when determining the acceptability of small risks to health. And they give her considerable discretion when she does so.
This discretion would seem sufficient to avoid the extreme results that some of the industry parties fear. After all, the EPA, in setting standards that "protect the public health" with "an adequate margin of safety," retains discretionary authority to avoid regulating risks that it reasonably concludes are trivial in context. Nor need regulation lead to deindustrialization. Preindustrial society was not a very healthy society; hence a standard demanding the return of the Stone Age would not prove "requisite to protect the public health."
Although I rely more heavily than does the Court upon legislative history and alternative sources of statutory flexibility, I reach the same ultimate conclusion. Section 109 does not delegate to the EPA authority to base the national ambient air quality standards, in whole or in part, upon the economic costs of compliance.
2 FOOTNOTES
Footnote 1
Together with No. 99-1426, American Trucking Associations, Inc., et al. v. Whitman, Administrator of Environmental Protection Agency, et al., also on certiorari to the same court.
3 FOOTNOTES
Footnote 1
None of the sections of the CAA in which the District of Columbia Circuit has found authority for the EPA to consider costs shares §109(b)(1)'s prominence in the overall statutory scheme. See, e.g., Michigan v. EPA, 213 F. 3d 663, 678-679 (CADC 2000); George E. Warren Corp. v. EPA, 159 F. 3d 616, 623-624 (CADC 1998); Natural Resources Defense Council, Inc. v. EPA, 824 F. 2d 1146, 1154-1168 (CADC 1987) (en banc).
Footnote 2
Respondents contend that this advice is required to be included in the NAAQS rulemaking record--which, if true, would suggest that it was relevant to the standard-setting process. But the provision respondents cite for their contention, 42 U. S. C. §7607(d)(3), requires only that "pertinent findings, recommendations, and comments by the Scientific Review Committee" be included. The Committee's advice concerning certain aspects of "adverse public health ... effects" from various attainment strategies is unquestionably pertinent; but to say that Committee-generated cost data are pertinent is to beg the question. Likewise, while "all written comments" must be placed in the docket, §7607(d)(4)(B)(i), the EPA need respond only to the "significant" ones, §7407(d)(6)(B); comments regarding cost data are not significant if cost data are irrelevant.
Footnote 3
Respondents scarcely mention in their arguments the secondary NAAQS required by §109(b)(2), 42 U. S. C. §7409(b)(2). For many of the same reasons described in the body of the opinion, as well as the text of §109(b)(2), which instructs the EPA to set the standards at a level "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air" (emphasis added), we conclude that the EPA may not consider implementation costs in setting the secondary NAAQS.
Footnote 4
Respondents' speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law. See, e.g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984); Atlantic Mut. Ins. Co. v. Commissioner, 523 U. S. 382, 387 (1998). It would not, however, be grounds for this Court's changing the law.
Footnote 5
TABLE I
Primary standard
Area class Design value* attainment date**
Marginal 0.121 up to 0.138 3 years after
November 15, 1990
Moderate 0.138 up to 0.160 6 years after
November 15, 1990
Serious 0.160 up to 0.180 9 years after
November 15, 1990
Severe 0.180 up to 0.280 15 years after
November 15, 1990
Extreme 0.280 and above 20 years after
November 15, 1990
*The design value is measured in parts per million (ppm).
**The primary standard attainment date is measured from November 15, 1990.
4 FOOTNOTES
Footnote 1
See, e.g., Touby v. United States, 500 U. S. 160, 165 (1991); United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 85 (1932); J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 407 (1928); Field v. Clark, 143 U. S. 649, 692 (1892).
Footnote 2
See Mistretta v. United States, 488 U. S. 361, 372 (1989) ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society ... Congress simply cannot do its job absent an ability to delegate power ..."). See also Loving v. United States, 517 U. S. 748, 758 (1996) ("[The nondelegation] principle does not mean ... that only Congress can make a rule of prospective force"); 1 K. Davis & R. Pierce, Administrative Law Treatise §2.6, p. 66 (3d ed. 1994) ("Except for two 1935 cases, the Court has never enforced its frequently announced prohibition on congressional delegation of legislative power").
13. (Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DECKER, OREGON STATE FORESTER, ET AL. v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 11–338. Argued December 3, 2012—Decided March 20, 2013*
The Clean Water Act (Act) requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into the navigable waters of the United States. See 33 U. S. C. §§1311(a), 1362(12). One of the Envi- ronmental Protection Agency’s (EPA) implementing regulations, the Silvicultural Rule, specifies which types of logging-related discharges are point sources. 40 CFR §122.27(b)(1). These discharges require NPDES permits unless some other federal statutory provision ex- empts them from coverage. One such statutory provision exempts “discharges composed entirely of stormwater,” 33 U. S. C. §1342(p)(1), unless the discharge is “associated with industrial activ- ity,” §1342(p)(2)(B). Under the EPA’s Industrial Stormwater Rule, the term “associated with industrial activity” covers only discharges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 CFR §122.26(b)(14). Shortly before oral argument in the instant cases, the EPA issued a final version of an amendment to the Industrial Stormwater Rule, clarifying that the NPDES permit requirement ap- plies only to logging operations involving rock crushing, gravel wash- ing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule.
Petitioner Georgia-Pacific West has a contract with Oregon to har- ——————
* Together with No. 11–347, Georgia-Pacific West, Inc., et al. v. Northwest Environmental Defense Center, also on certiorari to the same court.
2
DECKER v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER
Syllabus
vest timber from a state forest. When it rains, water runs off two logging roads used by petitioner into ditches, culverts, and channels that discharge the water into nearby rivers and streams. The dis- charges often contain large amounts of sediment, which evidence shows may be harmful to fish and other aquatic organisms. Re- spondent Northwest Environmental Defense Center (NEDC) filed suit against petitioner and state and local governments and officials, including petitioner Decker, invoking the Act’s citizen-suit provision, 33 U. S. C. §1365, and alleging that the defendants had not obtained NPDES permits before discharging stormwater runoff into two Ore- gon rivers. The District Court dismissed the action for failure to state a claim, concluding that NPDES permits were not required be- cause the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvicultural Rule. The Ninth Circuit reversed. It held that the conveyances were point sources under the Silvicultural Rule. It also concluded that the discharges were “asso- ciated with industrial activity” under the Industrial Stormwater Rule, despite the EPA’s contrary conclusion that the regulation ex- cludes the type of stormwater discharges from logging roads at issue. Thus, the court held, the discharges were not exempt from the NPDES permitting scheme.
Held:
1. A provision of the Act governing challenges to agency actions,
§1369(b), is not a jurisdictional bar to this suit. That provision is the exclusive vehicle for suits seeking to invalidate certain agency deci- sions, such as the establishment of effluent standards and the issu- ance of permits. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regula- tions. The present action falls within the scope of §1365. Pp. 8–9.
2. The EPA’s recent amendment to the Industrial Stormwater Rule does not make the cases moot. A live controversy continues to exist regarding whether petitioners may be held liable for unlawful dis- charges under the earlier version of the Industrial Stormwater Rule. That version governed petitioners’ past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit. These cases thus re- main live and justiciable. See Gwaltney of Smithfield, Ltd. v. Chesa- peake Bay Foundation, Inc., 484 U. S. 49, 64–65. The fact that the District Court might rule that NEDC’s arguments lack merit, or that relief is not warranted on the facts of these cases, does not make the cases moot. Pp. 9–11.
3. The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the EPA, exempts discharges of chan-
Cite as: 568 U. S. ____ (2013) 3
Syllabus
neled stormwater runoff from logging roads from the NPDES permit- ting scheme. The regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B), and the agency has construed the regulation to exempt the discharges at issue here. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’ ” Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (quoting Auer v. Robbins, 519 U. S. 452, 461). Here, it was reasonable for the EPA to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 CFR §122.26(b)(14). The regulatory scheme, taken as a whole, leaves open the rational interpretation that the regulation extends only to tradi- tional industrial buildings such as factories and associated sites and other relatively fixed facilities.
Another reason to accord Auer deference to the EPA’s interpreta- tion is that there is no indication that the agency’s current view is a change from prior practice or is a post hoc justification adopted in re- sponse to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___. Rather, the EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits. Its decision also exists against a background of state regulation with respect to stormwater runoff from logging roads. In exercising the broad discretion the Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further fed- eral regulation would be duplicative or counterproductive in light of Oregon’s extensive rules on the subject. Pp. 11–15.
640 F. 3d 1063, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GINSBURG, ALITO, SOTOMAYOR, and KAGAN, JJ., joined, and in which SCALIA, J., joined as to Parts I and II. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in part and dissenting in part. BREYER, J., took no part in the consideration or decision of the cases.
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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–338 and 11–347 _________________
DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON STATE FORESTER, ET AL., PETITIONERS
11–338 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS 11–347 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 20, 2013]
JUSTICE KENNEDY delivered the opinion of the Court.
These cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be “associated with industrial activity.” 33 U. S. C. §1342(p)(2)(B). The Environmental Protection Agency (EPA), with the responsibility to enforce the Act, has issued a regulation defining the term “associated with industrial activity” to cover only discharges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, pro- cessing or raw materials storage areas at an industrial
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plant.” 40 CFR 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997).
I A
Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integ- rity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. §1251(a). A central provision of the Act is its require- ment that individuals, corporations, and governments se- cure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§1311(a), 1362(12); EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205 (1976). The Act defines “point source” as
“any discernible, confined and discrete conveyance, in- cluding but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, roll- ing stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” §1362(14).
When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The agency issued regulations exempting certain types of point-source discharges from the NPDES permitting
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scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA “authority to exempt categories of point sources from the permit re- quirements” of the Act. Natural Resources Defense Coun- cil, Inc. v. Costle, 568 F. 2d 1369, 1377. In response the EPA issued new regulations to define with more precision which categories of discharges qualified as point sources in the first place. Among these regulations was the so-called Silvicultural Rule. This rule is at issue here. It provides:
“Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvi- cultural activities and from which pollutants are dis- charged into waters of the United States. The term does not include non-point source silvicultural activi- ties such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road con- struction and maintenance from which there is natu- ral runoff.” 40 CFR §122.27(b)(1).
Under the quoted rule, any discharge from a logging- related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provi- sion exempts it from that coverage. In one such provision, 33 U. S. C. §1342(p), Congress has exempted certain dis- charges of stormwater runoff. The statutory exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage discharges of this kind. See, e.g., Natural Resources Defense Council, Inc. v. EPA, 966 F. 2d 1292, 1295–1296 (CA9 1992). In 1987, Congress responded to these problems and adopted various stormwater-related
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amendments to the Act. §405, 101 Stat. 69, 33 U. S. C. §1342(p).
The 1987 amendments exempt from the NPDES permit- ting scheme most “discharges composed entirely of storm- water.” §1342(p)(1). The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require per- mits for stormwater discharges “associated with indus- trial activity.” §1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as
“the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or ac- tivities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from . . . immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility . . . .” 40 CFR §122.26(b)(14) (2006).
The Industrial Stormwater Rule also specified that, with one exception not relevant here, “[f]acilities classified as Standard Industrial Classificatio[n] 24” are “considered to be engaging in ‘industrial activity’ for purposes of para- graph (b)(14).” Ibid. The Standard Industrial Classifica- tions are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept. of Labor, Standard Industrial Classifications Manual, online at (as visited Mar. 14, 2013, and available in Clerk of Court’s case file). Standard Industrial Classification 24 identifies
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industries involved in the field of “Lumber and Wood Products.” 2 App. 64. This includes the “Logging” indus- try, defined as “[e]stablishments primarily engaged in cutting timber and in producing . . . primary forest or wood raw materials.” Ibid.
On November 30, 2012—three days before the instant cases were argued in this Court—the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the agency’s response to the Court of Appeals’ ruling now under review. The amended version seeks to clarify the types of facilities within Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule. The amended Industrial Stormwater Rule does not cover all facilities within Standard Industrial Classification 24. It limits covered stormwater discharges to
“[f ]acilities classified within Standard Industrial Clas- sification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities . . . and Industry Groups 242 through 249.” 77 Fed. Reg. 72974, pt. 122, subpt. B (2012).
It should be noted, by way of explanation, that an Indus- try Group is a subcategory of businesses within a Stand- ard Industrial Classification. Industry Group 241 is “Logging,” while Industry Groups 242 through 245 are, respectively, “Sawmills and Planing Mills,” “Millwork, Veneer, Plywood, and Structural Wood,” “Wood Contain- ers,” and “Wood Buildings and Mobile Homes.” Industry Group 249 is “Miscellaneous Wood Products.” Industry Groups 246 through 248 are blank categories. Standard Industrial Classifications Manual, supra, Major Group 24.
It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity
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(rock crushing, gravel washing, log sorting, and log stor- age facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule.
Up to this stage in the litigation, of course, the cases have been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be required for the stormwater discharges at issue. The parties disagree about the significance of the amended rule for purposes of these cases. Before reaching this and other preliminary points, however, it is appropriate to set forth the facts and history of the cases leading to the proceedings in this Court.
B
At issue are discharges of channeled stormwater runoff from two logging roads in Oregon’s Tillamook State For- est, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia-Pacific West, along with other logging and paper-products companies, has a con- tract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 inches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from the roads. There is evidence that this runoff can harm fish and other aquatic organisms.
In September 2006, respondent Northwest Environmen- tal Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It invoked the Clean Water Act’s citizen-suit provision, 33 U. S. C. §1365, and named as defendants certain firms involved in log-
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Opinion of the Court
ging and paper-products operations (including petitioner Georgia-Pacific West), as well as state and local govern- ments and officials (including the State Forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the defendants caused discharges of channeled stormwater runoff into two waterways—the South Fork Trask River and the Little South Fork Kilchis River. The defendants had not obtained NPDES permits, and so, the suit alleged, they had violated the Act.
The District Court dismissed the action for failure to state a claim. It concluded that NPDES permits were not required because the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvi- cultural Rule. The Court of Appeals for the Ninth Cir- cuit reversed. Northwest Environmental Defense Center v. Brown, 640 F. 3d 1063 (2011). It relied upon three princi- pal propositions. First, it held that the District Court had subject-matter jurisdiction under §1365 notwithstanding a different provision of the Act, 33 U. S. C. §1369(b)(1), limiting judicial review of EPA regulations. Second, the Court of Appeals held that while the EPA’s Silvicultural Rule is ambiguous on the question whether the convey- ances at issue are point sources, those conveyances must be deemed point sources under the rule in order to give effect to the Act’s expansive definition of the term. Third, the Court of Appeals held that because the Industrial Stormwater Rule makes cross-reference to Standard In- dustrial Classification 24, the discharges at issue are “associated with industrial activity” within the meaning of the regulation, despite the EPA’s conclusion to the con- trary. The regulation was held to be unambiguous on this point. The Court of Appeals thus ruled that the dis- charges were from point sources and not exempt from the NPDES permitting scheme by the Industrial Stormwater Rule. It followed that petitioners had been in violation of the Act.
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This Court granted certiorari. 567 U. S. ___ (2012).
II
Before proceeding to the merits, it is necessary to con- sider two jurisdictional questions.
A
Respondent NEDC invoked the jurisdiction of the Dis- trict Court under 33 U. S. C. §1365(a), which “authorize[s] private enforcement of the provisions of [the Clean Water Act]” and its implementing regulations. Department of Energy v. Ohio, 503 U. S. 607, 613, n. 5 (1992). Petition- ers, however, maintain that this suit is barred by a sepa- rate provision of the Act, §1369(b). That statute provides for “judicial review in the United States courts of appeals of various particular actions by the [EPA] Administrator, including establishment of effluent standards and issu- ance of permits for discharge of pollutants.” Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13–14 (1981). Where that review is available, it is the exclusive means of challenging actions covered by the statute, §1369(b)(2), and an application for review must be lodged in the court of appeals within 120 days of the Administrator’s action, §1369(b)(1).
The Court of Appeals was correct to rule that the exclu- sive jurisdiction mandate is not applicable in this suit. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obliga- tion imposed by the Act or its regulations.
The present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule. The rule is ambiguous: Its charac- terization of silvicultural harvesting operations “from which there is natural runoff,” 40 CFR §122.27(b)(1), as a
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Opinion of the Court
nonpoint source might be read, as petitioners contend, to apply to the channeled stormwater runoff at issue; or it might be read, as respondent NEDC urges, to apply only to runoff not collected in channels or other engineered improvements. See New Oxford American Dictionary 1167 (3d ed. 2010) (Oxford Dict.) (“natural” means “existing in or caused by nature; not made or caused by human- kind”). NEDC’s reading would make the channeled dis- charges here point-source pollution under the Act. In its view only this interpretation can be squared with the Act’s broad definition of “point source.” 33 U. S. C. §1362(14). On this premise, the instant suit is an effort not to chal- lenge the Silvicultural Rule but to enforce it under a proper interpretation. It is a basic tenet that “regulations, in order to be valid, must be consistent with the statute under which they are promulgated.” United States v. Larionoff, 431 U. S. 864, 873 (1977).
For jurisdictional purposes, it is unnecessary to deter- mine whether NEDC is correct in arguing that only its reading of the Silvicultural Rule is permitted under the Act. It suffices to note that NEDC urges the Court to adopt a “purposeful but permissible reading of the regula- tion . . . to bring it into harmony with . . . the statute.” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 573 (2007). NEDC does not seek “an implicit declara- tion that the . . . regulations were invalid as written.” Ibid. And, as a result, §1369(b) is not a jurisdictional bar to this suit.
B
“It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male, 564 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). This principle requires us to determine whether
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the EPA’s recent amendment to the Industrial Stormwater Rule makes the cases moot. In a supplemental brief filed after oral argument, petitioner Decker, joined by the United States as amicus curiae, takes the position that the recent amendment makes these cases moot in relevant part. See Supp. Brief for Petitioners in No. 11–338, pp. 4–6; Supp. Brief for United States as Amicus Curiae 4–8.
That conclusion is incorrect. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees Int’l, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). Here, despite the recent amendment, a live controversy continues to exist regarding whether petitioners may be held liable for un- lawful discharges under the earlier version of the Indus- trial Stormwater Rule.
Respondent NEDC continues to press its claim that petitioners’ discharges are unlawful under both the amended regulation and the earlier version. See Supp. Brief for Respondent 3–13. The instant cases provide no occasion to interpret the amended regulation. “ ‘[W]e are a court of review, not of first view.’” Arkansas Game and Fish Comm’n v. United States, ante, at 13 (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)). The parties, however, have litigated the suit extensively based on the earlier version of the Industrial Stormwater Rule; and that version governed petitioners’ past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit.
If the Court of Appeals is correct that petitioners were obligated to secure NPDES permits before discharging channeled stormwater runoff, the District Court might order some remedy for their past violations. The Act contemplates civil penalties of up to $25,000 per day, 33 U. S. C. §1319(d), as well as attorney’s fees for prevailing
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parties, §1365(d). NEDC, in addition, requests injunctive relief for both past and ongoing violations, in part in the form of an order that petitioners incur certain environmental- remediation costs to alleviate harms attributable to their past discharges. Under these circumstances, the cases remain live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 64–65 (1987). The District Court, it is true, might rule that NEDC’s argu- ments lack merit, or that the relief it seeks is not warranted on the facts of these cases. That possibility, however, does not make the cases moot. “There may be jurisdiction and yet an absence of merits.” General Investment Co. v. New York Central R. Co., 271 U. S. 228, 230 (1926).
III
The substantive question of the necessity for an NPDES permit under the earlier rule now must be addressed. Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were “associated with industrial activity,” 33 U. S. C. §1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 CFR §122.26(b)(14) (2006). Other- wise, the discharges fall within the Act’s general exemp- tion of “discharges composed entirely of stormwater” from the NPDES permitting scheme. 33 U. S. C. §1342(p)(1).
NEDC first contends that the statutory term “associated with industrial activity” unambiguously covers discharges of channeled stormwater runoff from logging roads. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843 (1984). That view, however, overlooks the multiple definitions of the terms “indus- trial” and “industry.” These words can refer to business activity in general, yet so too can they be limited to “eco-
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nomic activity concerned with the processing of raw mate- rials and manufacture of goods in factories.” Oxford Dict. 887. The latter definition does not necessarily encompass outdoor timber harvesting. The statute does not foreclose more specific definition by the agency, since it provides no further detail as to its intended scope.
Somewhat more plausible is NEDC’s claim that the preamendment version of the Industrial Stormwater Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, “[f]or the cate- gories of industries identified in this section,” NPDES permits are required for, among other things, “storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials.” 40 CFR §122.26(b)(14) (2006). Yet this raises the question wheth- er logging is a “categor[y] of industr[y]” identified by the section. The regulation goes on to identify a list of “cate- gories of facilities” that “are considered to be engaging in ‘industrial activity’ for purposes” of the Industrial Storm- water Rule. Ibid. In the earlier version of the regulation, this list included “[f]acilities classified as Standard Indus- trial Classificatio[n] 24,” which encompasses “Logging.” Ibid. See also supra, at 4–5. Hence, NEDC asserts, log- ging is among the categories of industries for which “storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials” required NPDES permits under the earlier version of the Industrial Storm- water Rule. §122.26(b)(14). NEDC further notes, in sup- port of its reading of the regulation, that modern logging is a large-scale, highly mechanized enterprise, using sophis- ticated harvesting machines weighing up to 20 tons. See Brief for Respondent 4–5.
The EPA takes a different view. It concludes that the earlier regulation invoked Standard Industrial Classifica- tion 24 “‘to regulate traditional industrial sources such as sawmills.’” Brief for United States as Amicus Curiae
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24–25. It points to the regulation’s reference to “facilities” and the classification’s reference to “establishments,” which suggest industrial sites more fixed and permanent than outdoor timber-harvesting operations. Ibid. See also 55 Fed. Reg. 47990, 48008 (1990). This reading is re- inforced by the Industrial Stormwater Rule’s definition of discharges associated with industrial activity as dis- charges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 CFR §122.26(b)(14) (2006). This language lends support to the EPA’s claim that the regulation does not cover temporary, outdoor logging installations. It was reasonable for the agency to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufac- turing,” “processing,” or “raw materials storage areas.” See Oxford Dict. 1066 (manufacturing is “mak[ing] (some- thing) on a large scale using machinery”); id., at 1392 (processing is “perform[ing] a series of mechanical or chemical operations on (something) in order to change or preserve it”). In addition, even if logging as a general matter is a type of economic activity within the regula- tion’s scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations “at an industrial plant” in order to be subject to NPDES permitting.
NEDC resists this conclusion, noting that elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) (large con- struction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations
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are and have a closer connection to traditional industrial sites. In light of the language of the regulation just dis- cussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation’s reach may be limited by the requirement that the discharges be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” §122.26(b)(14).
It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or incon- sistent with the regulation.’” Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is a permissible one. Taken together, the regulation’s ref- erences to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.
There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its cur- rent view is a change from prior practice or a post hoc justification adopted in response to litigation. See Chris- topher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.
The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort
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to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629– 625–0330(4) (2012); requiring logging companies to con- struct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent vis- ible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in estab- lishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Ore- gon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Con- gress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).
***
The preamendment version of the Industrial Storm- water Rule, as permissibly construed by the agency, ex- empts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners’ alternative argument that the conveyances in question are not “pipe[s], ditch[es], channel[s], tunnel[s], conduit[s],” or any other type of point source within the Act’s definition of the term. §1362(14).
For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for pro-
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It is so ordered.
JUSTICE BREYER took no part in the consideration or decision of these cases.
Cite as: 568 U. S. ____ (2013) 1 ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–338 and 11–347 _________________
DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON STATE FORESTER, ET AL., PETITIONERS
11–338 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS 11–347 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 20, 2013]
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO joins, concurring.
The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be ap- propriate to reconsider that principle in an appropriate case. But this is not that case.
Respondent suggested reconsidering Auer, in one sen- tence in a footnote, with no argument. See Brief for Re- spondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11–338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 223–224 (1997) (declining to decide question that received only “scant argumentation”). Out of 22 amicus briefs, only two—filed by dueling groups of law professors—addressed the issue on the merits. See Brief for Law Professors as Amici Curiae on the Propriety of
2 DECKER v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER
ROBERTS, C. J., concurring
Administrative Deference in Support of Respondent; Brief for Law Professors as Amici Curiae in Support of Petition- ers; see also FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___, n. 4 (2013) (slip op., at 7, n. 4) (declining to consider argument raised only by amicus).
The issue is a basic one going to the heart of administra- tive law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue.
I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.
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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 11–338 and 11–347 _________________
DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON STATE FORESTER, ET AL., PETITIONERS
11–338 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS 11–347 v.
NORTHWEST ENVIRONMENTAL DEFENSE CENTER
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 20, 2013]
JUSTICE SCALIA, concurring in part and dissenting in part.
I join Parts I and II of the Court’s opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it be- lieves the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.
Enough is enough.
I
For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S.
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___, ___ (2011) (SCALIA, J., concurring) (slip op., at 1). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945); Auer v. Robbins, 519 U. S. 452 (1997).
Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpreta- tion of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the agency makes the difference (note the Court’s defensive insistence that the agency’s interpreta- tion need not be “the best one,” ante, at 14). And respon- dent has asked us, if necessary, to “ ‘reconsider Auer.’ ” I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propri- ety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer’s flaws in a particularly vivid way.
The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or incon- sistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.
Our cases have not put forward a persuasive justifica- tion for Auer deference. The first case to apply it, Semi- nole Rock, offered no justification whatever—just the ipse
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dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325 U. S., at 414. Our later cases provide two principal explanations, neither of which has much to be said for it. See generally Stephen- son & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 1454–1458 (2011). First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. E.g., Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 150–153 (1991). The implied premise of this argument—that what we are looking for is the agency’s intent in adopting the rule—is false. There is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Whether governing rules are made by the national legisla- ture or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.
The other rationale our cases provide is that the agency possesses special expertise in administering its “‘complex and highly technical regulatory program.’” See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994). That is true enough, and it leads to the conclu- sion that agencies and not courts should make regula- tions. But it has nothing to do with who should interpret regulations—unless one believes that the purpose of inter- pretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its “special exper- tise” to formulate the best rule. But the purpose of inter- pretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison, 1 Cranch 137,
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177 (1803). Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leader- ship of agencies (and hence the policy preferences of agen- cies) changes with Presidential administrations, an agency head can only be sure that the application of his “special expertise” to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the “special expertise” of his successors. If we take agency enactments as writ- ten, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.
Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the mean- ing of regulations that they themselves crafted. To give an agency less control over the meaning of its own regula- tions than it has over the meaning of a congressionally enacted statute seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue in- terpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, re- garding the meaning of the statute. See Smiley v. Citi- bank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996). While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congres- sional implication that the agency can resolve ambiguities in its own regulations. For that would violate a funda- mental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive
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powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to exe- cute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron—whatever it leaves vague in the statute will be worked out by someone else. Chevron rep- resents a presumption about who, as between the Execu- tive and the Judiciary, that someone else will be. (The Executive, by the way—the competing political branch—is the less congenial repository of the power as far as Con- gress is concerned.) So Congress’s incentive is to speak as clearly as possible on the matters it regards as important.
But when an agency interprets its own rules—that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. “It is per- fectly understandable” for an agency to “issue vague regula- tions” if doing so will “maximiz[e] agency power.” Thomas Jefferson Univ., supra, at 525 (THOMAS, J., dissenting). Combining the power to prescribe with the power to inter- pret is not a new evil: Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commen- taries on the Laws of England 58 (1765). And our Consti- tution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543–544 (J. Cooke ed. 1961). Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice
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and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Ad- min. L. J. Am. U. 1, 11–12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. See Talk America, 564 U. S., at ___ (SCALIA, J., concurring) (slip op., at 2–3); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).
It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency’s view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed. Reg. 72974 (2012) (to be codified in 40 CFR pt. 122, sub pt. B). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it ar- gues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic conse- quences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion
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not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.
In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot jus- tify a rule that not only has no principled basis but contra- venes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.
II
I would therefore resolve these cases by using the famil- iar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel storm- water runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and possibly two, questions: First, was the stormwater discharged from a “point source”? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit require- ment because they were not “associated with industrial activity”? The fairest reading of the statute and regula- tions is that these discharges were from point sources, and were associated with industrial activity.
A
The Clean Water Act generally prohibits discharging pollution without a permit from what it calls a “point source.” 33 U. S. C. §1311(a). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,” and several other things. §1362(14). The stormwater here was discharged from logging roads through a series of pipes, ditches, and channels—all items expressly named in the definition.
EPA argues that the Silvicultural Rule, 40 CFR
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§122.27(b)(1) (2006), excludes from the definition of “[s]ilvicultural point source” “harvesting operations ... from which there is natural runoff.” This is relevant, says the agency, because that rule specifies that only “[s]ilvicultural point sources, as defined in this section,” are “point sources subject to the . . . permit program.” §122.27(a). In EPA’s view, the stormwater here is “natu- ral runoff.”
But are stormwater discharges “natural runoff” when they are channeled through manmade pipes and ditches, and carry with them manmade pollutants from manmade forest roads? It is not obvious that this is so—as the agency agrees. See Brief for United States as Amicus Curiae 19 (the rule’s “reference to ‘natural runoff’ associated with logging roads neither clearly encompasses nor clearly excludes the sort of channeled runoff that is at issue in this case”). In my view, giving the term the agency’s interpretation would contradict the statute’s definition of “point source,” which explicitly includes any “pipe, ditch, channel, tunnel, [and] conduit.” Applying the interpretive presumption of validity—the canon that we are to “prefe[r] the meaning that preserves to the meaning that destroys,” Panama Refining Co. v. Ryan, 293 U. S. 388, 439 (1935) (Cardozo, J., dissenting)—I would hold that the regula- tion’s exclusion of “natural runoff” does not reach the situation here. The stormwater discharges came from point sources, because they flowed out of artificial “pipe[s],” “ditch[es],” and “channel[s],” 33 U. S. C. §1362(14), and were thus not “natural runoff” from a logging opera- tion, 40 CFR §122.27(b)(1) (emphasis added).
B
Many point-source stormwater discharges are nonethe- less exempt from the usual permitting requirement. See 33 U. S. C. §1342(p). This exemption, however, does not reach discharges “associated with industrial activity.”
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Ibid. EPA has enacted a rule defining what it means for stormwater discharges to be “associated with” industrial activity, and what activities count as “industrial.” 40 CFR §122.26(b)(14).
The regulation sets out eleven “categories of industries”; as to those industries, discharges are “associated with industrial activity” if they come from sites used for “trans- portation” of “any raw material.” Ibid. The forest roads at issue here are used to transport raw material (logs); the only question is whether logging is a “categor[y] of in- dustr[y]” enumerated in the definition. It is: The second of the listed “categories of facilities” is “[f]acilities classified as Standard Industrial Classifications 24 (except 2434).” §122.26(b)(14)(ii). Opening one’s hymnal to Standard Industrial Classification 24 (“Lumber and Wood Products, Except Furniture”), one finds that the first industry group listed, No. 2411, is “Logging”—defined as “[e]stablish- ments primarily engaged in cutting timber.” 2 App. 64. (As if that were not clear enough, an illustrative product of this industry is helpfully listed: “Logs.”) That, I would think, is that.
EPA disagrees, and the Court gives the agency’s posi- tion Auer deference, but that reading is certainly not the most natural one. The Court relies heavily on the fact that the definition of “[s]torm water discharge associ- ated with industrial activity” requires that the discharge be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” §122.26(b)(14). The crucial question this definition pre- sents is whether the concluding phrase “at an industrial plant” limits only the last noun phrase (“raw materials storage areas”) or also the two preceding nouns (“manufac- turing” and “processing”). The canon of interpretation known as the rule of the last antecedent states that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately
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follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003). If a statute provides that “it shall be unlawful to possess a grenade launcher, a fully-automatic weapon, or a shotgun with a barrel shorter than 12 inches,” that does not mean that a grenade launcher with a barrel longer than 12 inches is legal. Application of the canon would mean that “at an industrial plant” modifies only “raw materials storage areas,” and therefore that “manufacturing” and “processing” anywhere, including in the forest, would be “associated with industrial activity.” (Standard Industrial Classification 24 categorizes logging as a manufacturing business, and these discharges are therefore “directly related to manufacturing.”)
Like all canons of interpretation, the rule of the last antecedent can be overcome by textual indication of contrary meaning. But that does not exist here. To the contrary, the enumerated categories of industries to which the term “industrial activity” applies reinforce the proposition that “at an industrial plant” does not modify “manufacturing” or “processing.” The term in- cludes (in addition to logging) “active or inactive mining operations,” §122.26(b)(14)(iii); “[l]andfills” and “open dumps,” §122.26(b)(14)(v); “automobile junkyards,” §122.26(b)(14)(vi); and “[c]onstruction activity including clearing, grading and excavation,” §122.26(b)(14)(x). Those industries and activities (while related to manufac- turing and processing) virtually never take place at any- thing like what one might describe as a “plant.” The rule of the last antecedent is therefore confirmed as the correct guide to meaning here: “at an industrial plant” limits only “raw materials storage areas.”
EPA also insists, Brief for United States as Amicus Curiae 24, that the regulation reaches only “‘traditional’” sources of industrial stormwater, such as sawmills. But Standard Industrial Classification 24 has a specific sub- category (No. 242) that is “Sawmills and Planing Mills.” 2
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App. 64. The rule is not so limited, reaching by its terms “Standard Industrial Classificatio[n] 24 (except 2434).” §122.26(b)(14)(ii). The explicit carving-out of No. 2434 is telling: Why EPA chose to exclude “establishments pri- marily engaged in manufacturing wood kitchen cabinet and wood bathroom vanities” from the definition of indus- trial stormwater, I do not know—but the picayune nature of the exclusion gives lie to the idea that the rule’s scope ought to be decided by a rough sense of its gestalt. If EPA had meant to reach only sawmills, it quite obviously knew how to do so.
Finally, the Court believes that Standard Industrial Classification 24’s reference to “establishments” “sug- gest[s] industrial sites more fixed and permanent than outdoor timber-harvesting operations.” Ante, at 13. Not so. The Standard Industrial Classification uses “es- tablishments” throughout to refer to business entities in general; for example, Classification 2411 refers to “[e]stablishments primarily engaged in cutting timber,” which includes “producing wood chips in the field.” 2 App. 64. I cannot imagine what kind of “fixed and permanent” industrial site the Court and EPA imagine will be “produc- ing wood chips in the field.” And the Court’s final point, ante, at 13—that the regulatory definition of “industrial activity” uses the word “facilities”—cuts the other way: EPA regulations define “facility” to include “any . . . ‘point source.’” 40 CFR §122.2; see, e.g., §122.26(b)(14)(iii) (re- ferring to mines as “facilities”).
The agency also assures us that its intent (Brief for United States as Amicus Curiae 25) was to reach a more limited subset of logging activities, an intent that it be- lieves can essentially float free from the text of the rele- vant rule. In the end, this is the real meat of the matter: EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been
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***
Because the fairest reading of the agency’s rules pro- scribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.
13
Anderson v. American Smelting & Refining Co., 265 Fed. Rep. 928 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
104 Wn.2d 677
709 P.2d 782, 23 ERC 1851, 16 Envtl.
L. Rep. 20,346
Certification from the United States District Court for the
Western District of Washington in Michael O.
BRADLEY and Marie A. Bradley, husband
and wife, Plaintiffs,
v.
AMERICAN SMELTING AND REFINING COMPANY, a New Jersey
corporation doing business in Washington, Defendant.
No. 51094-6.
Supreme Court of Washington,
En Banc.
Nov. 14, 1985.
[709 P.2d 784]
Page 678
Cooper & Tobin, Bill Tobin, Vashon, Wash., for plaintiffs.
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, Ronald A. Roberts, Kathryn J. Nelson, Tacoma, Wash.,
Page 679
for defendant.
CALLOW, Justice.
This comes before us on a certification from the United States District Court for the Western District of Washington. Plaintiffs, landowners on Vashon Island, had sued for damages in trespass and nuisance from the deposit on their property of microscopic, airborne particles of heavy metals which came from the American Smelting and Refining Company (ASARCO) copper smelter at Ruston, Washington.
The issues certified for answer are as follows:
(1) Did the defendant have the requisite intent to commit intentional trespass as a matter of law?
(2) Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance?
(3) Does the cause of action for trespassory invasion require proof of actual damages?
(4) If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription and preemption by other state laws recognized?
The parties have stipulated to the facts as follows: Plaintiffs Michael O. Bradley and Marie A. Bradley, husband and wife, are owners and occupiers of real property on the southern end of Vashon Island in King County, Washington. The Bradleys purchased their property in 1978. Defendant ASARCO, a New Jersey corporation doing business in Washington, operates a primary copper smelter on real property it owns in Rushton, which is an incorporated municipality surrounded by the city of Tacoma, Washington.
On October 3, 1983, plaintiffs brought this action against
Page 680
defendant alleging a cause of action for intentional trespass and for nuisance.
Plaintiffs' property is located some 4 miles north of defendant's smelter. Defendant's primary copper smelter (also referred to as the Tacoma smelter), has operated in its present location since 1890. It has operated as a copper smelter since 1902, and in 1905 it was purchased and operated by a corporate entity which is now ASARCO. As a part of the industrial process of smelting copper at the Tacoma smelter, various gases such as sulfur dioxide and particulate matter, including arsenic, cadmium and other metals, are emitted. Particulate matter is composed of distinct particles of matter other than water, which cannot be detected by the human senses.
The emissions from the Tacoma smelter are subject to regulation under the Federal Clean Air Act, the Washington Clean Air Act (RCW 70.94) and the Puget Sound Air Pollution Control Agency (PSAPCA). Currently, the Tacoma smelter meets the National Ambient Air Quality Standards (NAAQS), both primary and secondary, for both sulfur dioxide and particulate matter. As a result of the variance granted by PSAPCA, the Tacoma smelter is also in compliance with PSAPCA Regulation I concerning particulate emissions.
As a part of defendant's smelting process, the Tacoma smelter emits into the atmosphere gases and particulate matter. For the purposes of resolving the certified questions, the parties stipulate that some particulate emissions of both cadmium and arsenic from the Tacoma smelter have been and are continuing to be deposited on plaintiffs' land. Defendant ASARCO has been aware since it took over operation of the Tacoma smelter in 1905 that the wind does, on occasion, cause smelter particulate emissions[709 P.2d 785] to blow over Vashon Island where plaintiffs' land is located.
The parties are squabbling to some extent about other "factual" assertions which are immaterial to the resolution of the issues posed by the certification. It was apparently stipulated that the record contains no proof of actual damages.
Page 681
Other matters have been brought to our attention in the briefs of the parties which may be pertinent to the disposition of the case by the Federal District Court, but which are not relevant to our inquiry.
This case was initiated in King County Superior Court and later removed to the United States District Court. Upon the plaintiffs moving for summary judgment on the issue of liability for the claimed trespass, the stated issues were certified to this court. The issues present the conflict in an industrial society between the need of all for the production of goods and the desire of the landowner near the manufacturing plant producing those goods that his use and enjoyment of his land not be diminished by the unpleasant side effects of the manufacturing process. A reconciliation must be found between the interest of the many who are unaffected by the possible poisoning and the few who may be affected.
1. Did the defendant have the requisite intent to commit intentional trespass as a matter of law?
The parties stipulated that as a part of the smelting process, particulate matter including arsenic and cadmium was emitted, that some of the emissions had been deposited on the plaintiffs' land and that the defendant has been aware since 1905 that the wind, on occasion, caused these emissions to be blown over the plaintiffs' land. The defendant cannot and does not deny that whenever the smelter was in operation the whim of the winds could bring these deleterious substances to the plaintiffs' premises. We are asked if the defendant, knowing what it had to know from the facts it admits, had the legal intent to commit trespass.
The Restatement (Second) of Torts § 158 (1965) states:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
Page 682
(c) fails to remove from the land a thing which he is under a duty to remove.
In the comment on Clause (a) of § 158 at 278 it is stated in part:
i. Causing entry of a thing. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing, either on or beneath the surface of the land or in the air space above it. Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land ... In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.
Addressing the definition, scope and meaning of "intent", section 8A of the Restatement (Second) of Torts says:
The word "intent" is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
and we find in comment b at 15:
Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.
[709 P.2d 786] The defendant has known for decades that sulfur dioxide and particulates of arsenic, cadmium and other metals were being emitted from the tall smokestack. It had to know that the solids propelled into the air by the warm gases would settle back to earth somewhere. It had to know that a purpose of the tall stack was to disperse the gas, smoke and minute solids over as large an area as possible and as far away as possible, but that while any resulting contamination would be diminished as to any one area or landowner, that nonetheless contamination, though slight, would follow. In W. Prosser, Torts § 8, at 31-32 (4th ed.
Page 683
1971) intent is defined as follows:
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. The defendant may be liable although he has meant nothing more than a good-natured practical joke ...
* * *
Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.... The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.
(Footnotes omitted.)
This has been the reasoning of the decisions of this State. Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955) involved a 5-year-old boy who pulled a chair from under an arthritic woman as she was about to sit in it. The court held that to find liability for an intentional tort it had to be found that there was a volitional act undertaken with the knowledge and substantial certainty that reasonably to be expected consequences would follow.
It is patent that the defendant acted on its own volition and had to appreciate with substantial certainty that the law of gravity would visit the effluence upon someone, somewhere.
The defendant cites Washington Natural Gas Co. v. Tyee Constr. Co., 26 Wash.App. 235, 611 P.2d 1378, review denied 94 Wash.2d 1011 (1980) as standing for the proposition that the intent necessary to find a trespass is an intent to cause damage. We find nothing in that statement inconsistent
Page 684
with our holding that intent to trespass may also include an act that the actor undertakes realizing that there is a high probability of injury to others and yet the actor behaves with disregard of those likely consequences.
We find that the defendant had the requisite intent to commit intentional trespass as a matter of law.
2. Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance?
The courts have been groping for a reconciliation of the doctrines of trespass and nuisance over a long period of time and, to a great extent, have concluded that little of substance remains to any distinction between the two when air pollution is involved. Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930) held that the discharge of smoke, ashes and cinders from a sawmill upon a neighboring farm was "in the nature of a continuing nuisance" and that the 2-year statute of limitations applied. The opinion also stated that an action for damages could be maintained if the injury to the premises was substantial rather than slight. See [709 P.2d 787] also Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902).
We agree with the observations on the inconsequential nature of the efforts to reconcile the trappings of the concepts of trespass and nuisance in the face of industrial airborne pollution when Professor Rodgers states:
Trespass is a theory closely related to nuisance and occasionally invoked in environmental cases. The distinction between the two originally was the difference between the old action of trespass and the action on the case: if there was a direct and immediate physical invasion of plaintiff's property, as by casting stones or water on it, it was a trespass; if the invasion was indirect, as by the seepage of water, it was a nuisance.
Today, with the abandonment of the old procedural forms, the line between trespass and nuisance has become "wavering and uncertain." The basic distinction
Page 685
is that trespass can be defined as any intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas a nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. That is to say, in trespass cases defendant's conduct typically results in an encroachment by "something" upon plaintiff's exclusive rights of possession.
The first and most important proposition about trespass and nuisance principles is that they are largely coextensive. Both concepts are often discussed in the same cases without differentiation between the elements of recovery....
It is also true that in the environmental arena both nuisance and trespass cases typically involve intentional conduct by the defendant who knows that his activities are substantially certain to result in an invasion of plaintiff's interests. The principal difference in theories is that the tort of trespass is complete upon a tangible invasion of plaintiff's property, however slight, whereas a nuisance requires proof that the interference with use and enjoyment is "substantial and unreasonable." This burden of proof advantage in a trespass case is accompanied by a slight remedial advantage as well. Upon proof of a technical trespass plaintiff always is entitled to nominal damages. It is possible also that a plaintiff could get injunctive relief against a technical trespass--for example, the deposit of particles of air pollutant on his property causing no known adverse effects. The protection of the integrity of his possessory interests might justify the injunction even without proof of the substantial injury necessary to establish a nuisance. Of course absent proof of injury, or at least a reasonable suspicion of it, courts are unlikely to invoke their equitable powers to require expensive control efforts.
While the strict liability origins of trespass encourage courts to eschew a balancing test in name, there is authority for denying injunctive relief if defendant has exhausted his technological opportunities for control. If adopted generally, this principle would result substantially in a coalescence of nuisance and trespass law. Acknowledging technological or economic justifications for trespassory invasions does away with the historically harsh treatment of conduct interfering with another's possessory interests.
Page 686
Just as there may be proof advantages in a trespass theory, there may be disadvantages also. Potential problems lurk in the ancient requirements that a trespassory invasion be "direct or immediate" and that an "object" or "something tangible" be deposited upon plaintiff's land. Some courts hold that if an intervening force, such as wind or water, carries the pollutants onto the plaintiff's land, then the entry is not "direct." Others define "object" as requiring something larger or more substantial than smoke, dust, gas, or fumes.
Both of these concepts are nonsensical barriers, although the courts are slow to admit it. The requirement that the invasion be "direct" is a holdover from the forms of action, and is repudiated by [709 P.2d 788] contemporary science of causation. Atmospheric or hydrologic systems assure that pollutants deposited in one place will end up somewhere else, with no less assurance of causation than the blaster who watches the debris rise from his property and settle on his neighbor's land. Trespassory consequences today may be no less "direct" even if the mechanism of delivery is viewed as more complex.
The insistence that a trespass involve an invasion by a "thing" or "object" was repudiated in the well known (but not particularly influential) case of Martin v. Reynolds Metals Co., [221 Or. 86, 342 P.2d 790 (1959) ], which held that gaseous and particulate fluorides from an aluminum smelter constituted a trespass for purposes of the statute of limitations:
[L]iability on the theory of trespass has been recognized where the harm was produced by the vibration of the soil or by the concussion of the air which, of course, is nothing more than the movement of molecules one against the other.
* * *
The view recognizing a trespassory invasion where there is no 'thing' which can be seen with the naked eye undoubtedly runs counter to the definition of trespass expressed in some quarters. [Citing the Restatement (First), Torts and Prosser]. It is quite possible that in an earlier day when science had not yet peered into the molecular and atomic world of small particles, the courts could not fit an invasion through unseen physical instrumentalities into the requirement that a trespass can result only from a direct invasion. But in
Page 687
this atomic age even the uneducated know the great and awful force contained in the atom and what it can do to a man's property if it is released. In fact, the now famous equation E=MC 2 has taught us that mass and energy are equivalents and that our concept of 'things' must be reframed. If these observations on science in relation to the law of trespass should appear theoretical and unreal in the abstract, they become very practical and real to the possessor of land when the unseen force cracks the foundation of his house. The force is just as real if it is chemical in nature and must be awakened by the intervention of another agency before it does harm.
Martin is quite right in hastening the demise of the "direct" and "tangible" limitations on the law of trespass. But any disappearance of these limits on the doctrine is likely to be accompanied by modifications of its strict liability advantages also. While parts per billion of fluorides or rays of light or magnetic invasions may work a trespass as effectively as flying rocks, it would seem that relief (particularly injunctive relief) should not follow without further inquiry into the limits of technology and prevailing land use patterns.
With regard to remedies, the trespass and nuisance cases are quite alike. Martin points up an important difference because the statutes of limitation for nuisances are generally shorter than those for trespasses. The measure of damages for a permanent trespass, like a nuisance, is depreciation of market value.
(Footnotes omitted.) W. Rodgers, Environmental Law § 2.13 at 154-57 (1977)
Martin v. Reynolds Metals Co., 221 Or. 86, 90-91, 101, 342 P.2d 790 (1959) was an action in trespass brought against the defendant corporation for causing gases and fluoride particulates to settle on the plaintiffs' land making it unfit for livestock. The quote set forth from Rodgers' Environmental Law included a portion of the decision from that case. In addition, the court stated:
Trespass and private nuisance are separate fields of tort liability relating to actionable interference with the possession of land. They may be distinguished by comparing the interest invaded; and actionable invasion of a
Page 688
possessor's interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor's interest in the use and enjoyment of his land is a nuisance. 4 Restatement,[709 P.2d 789] Torts 224 Intro. Note Chapter 40.
The same conduct on the part of a defendant may and often does result in the actionable invasion of both of these interests, in which case the choice between the two remedies is, in most cases, a matter of little consequence. Where the action is brought on the theory of nuisance alone the court ordinarily is not called upon to determine whether the conduct would also result in a trespassory invasion. In such cases the courts' treatment of the invasion solely in terms of the law of nuisance does not mean that the same conduct could not also be regarded as a trespass. Some of the cases relied upon by the defendant are of this type; cases in which the court holds that the interference with the plaintiff's possession through soot, dirt, smoke, cinders, ashes and similar substances constitute a nuisance, but where the court does not discuss the applicability of the law of trespass to the same set of facts.
However, there are cases which have held that the defendant's interference with plaintiff's possession resulting from the settling upon his land of effluents emanating from defendant's operations is exclusively nontrespassory. Although in such cases the separate particles which collectively cause the invasion are minute, the deposit of each of the particles constitutes a physical intrusion and, but for the size of the particle, would clearly give rise to an action of trespass. The defendant asks us to take account of the difference in size of the physical agency through which the intrusion occurs and relegate entirely to the field of nuisance law certain invasions which do not meet the dimensional test, whatever that is. In pressing this argument upon us the defendant must admit that there are cases which have held that a trespass results from the movement or deposit of rather small objects over or upon the surface of the possessor's land.
* * *
We hold that the defendant's conduct in causing chemical substances to be deposited upon the plaintiffs' land fulfilled all of the requirements under the law of trespass.
Page 689
(Citations omitted.) We hold that theories of trespass and nuisance are not inconsistent, that the theories may apply concurrently, and that the injured party may proceed under both theories when the elements of both actions are present. The Restatement (Second) of Torts § 821D, comment d, at 102 (1979) states:
For an intentional trespass, there is liability without harm; for a private nuisance, there is no liability without significant harm. In trespass an intentional invasion of the plaintiff's possession is of itself a tort, and liability follows unless the defendant can show a privilege. In private nuisance an intentional interference with the plaintiff's use or enjoyment is not of itself a tort, and unreasonableness of the interference is necessary for liability.
Comment e at 102 states:
There may, however, be some overlapping of the causes of action for trespass and private nuisance. An invasion of the possession of land normally involves some degree of interference with its use and enjoyment and this is true particularly when some harm is inflicted upon the land itself. The cause of action for trespass has traditionally included liability for incidental harms of this nature. If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both....
The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both.
[709 P.2d 790] We also should recognize the fallacy of clinging to outmoded doctrines. The distinction between direct and indirect invasions to land was abandoned in Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965). There the defendant had been plowing a fireguard in his field when a spark escaped from the exhaust stack of his tractor and set on fire the plaintiff's adjoining wheat field. An action was
Page 690
commenced more than 2 years but less than 3 years from the date of the fire. The trial court held that an action would not lie in trespass due to the indirect nature of the invasion, and dismissed the case.
The opinion states in part at pages 482-83, 403 P.2d 343:
The common law, along with its forms of action, has long been recognized as capable of growth and expansion in keeping with the necessities of modern society. The writings of Chitty and Coke have long been absent from the library shelves of most practicing attorneys, and, if for no other reason, the fine, though oftentimes indiscernible distinctions, between the ancient writs of trespass and trespass on the case should not be unduly preserved in aid of a statute of limitations. The proper rule should now be as enunciated in Restatement, Torts § 165, p. 390:
One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest.
See also 35 Wash.L.Rev. 474 (1960); 46 Wash.L.Rev. 47, 114-16 (1970).
Having held that there was an intentional trespass, we adopt, in part, the rationale of Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979), which stated in part:
Although we view this decision as an application, and not an extension, of our present law of trespass, we feel that a brief restatement and summary of the principles involved in this area would be appropriate. Whether an invasion of a property interest is a trespass or a nuisance does not depend upon whether the intruding agent is "tangible" or "intangible." Instead, an analysis must be made to determine the interest interfered with. If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies. If the intrusion is to the interest in use and enjoyment of property, the law of nuisance applies. As previously observed, however, the
Page 691
remedies of trespass and nuisance are not necessarily mutually exclusive.
* * *
Under the modern theory of trespass, the law presently allows an action to be maintained in trespass for invasions that, at one time, were considered indirect and, hence, only a nuisance. In order to recover in trespass for this type of invasion [i.e., the asphalt piled in such a way as to run onto plaintiff's property, or the pollution emitting from a defendant's smoke stack, such as in the present case], a plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff's possessory interest; and 4) substantial damages to the res.
(Footnote omitted.)
We accept and approve the elements of trespass by airborne pollutants as set forth by the Borland case. See also Roberts v. Permanente Corp., 188 Cal.App.2d 526, 10 Cal.Rptr. 519 (1961); Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777 (1956). We note, but decline to follow Arvidson v. Reynolds Metals Co., 125 F.Supp. 481 (W.D.Wash.1954); and Ryan v. Emmetsburg, 232 Iowa 600, 4 N.W.2d 435 (1942).
[709 P.2d 791] 3. Does the cause of action for trespassory invasion require proof of actual damages?
When airborne particles are transitory or quickly dissipate, they do not interfere with a property owner's possessory rights and, therefore, are properly denominated as nuisances. Born v. Exxon Corp., 388 So.2d 933 (Ala.1980); Ryan v. Emmetsburg, supra; and Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 (1948). When, however, the particles or substance accumulates on the land and does not pass away, then a trespass has occurred. Borland v. Sanders Lead Co., supra; Martin v. Reynolds Metals Co., supra. While at common law any trespass entitled a landowner to recover nominal or punitive damages for the invasion of his property, such a rule is
Page 692
not appropriate under the circumstances before us. No useful purpose would be served by sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant. Manufacturers would be harassed and the litigious few would cause the escalation of costs to the detriment of the many. The elements that we have adopted for an action in trespass from Borland require that a plaintiff has suffered actual and substantial damages. Since this is an element of the action, the plaintiff who cannot show that actual and substantial damages have been suffered should be subject to dismissal of his cause upon a motion for summary judgment.
4. If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription and preemption by other state laws recognized?
We have recognized that the intrusion to land from this kind of an invasion, once thought to be a trifling interference with the actual use of the land, may be very devastating indeed. The former approach, whether arising from the infrequency with which interference occurred, the unsophisticated nature of earlier air pollutants or because of our lack of awareness of their potential for harm, we now abandon. It is appropriate, therefore, that having recognized this intrusion upon land as a trespass, the 3-year statute of limitations should apply. RCW 4.16.080(1). An action for trespass to land must be brought within 3 years of the invasion to the premises. Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wash.2d 72, 75, 569 P.2d 1141 (1977); Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298 (1904). We now hold that when the actions of a defendant have (1) invaded the plaintiff's interest in the exclusive possession of his property, (2) been committed intentionally, (3) been done with the knowledge and reasonable foreseeability that the act would disturb the
Page 693
plaintiffs' possession, and (4) caused actual and substantial damages; the 3-year statute of limitations applies. To the extent that they are inconsistent with this holding, Riblet v. Spokane-Portland Cement Co., 41 Wash.2d 249, 248 P.2d 380 (1952); Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930); and Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266 (1902) are overruled.
Songstad v. Municipality of Metro Seattle, 2 Wash.App. 680, 472 P.2d 574 (1970), commenting upon Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965) (which we have previously quoted) observed that intentional intrusions fall within the ambit of RCW 4.16.080(1). The action of the defendant amounts to a continuing trespass which is defined by the Restatement (Second) of Torts § 158, comment m as "[a]n unprivileged remaining on land in another's possession". Assuming that a defendant has caused actual and substantial damage to a plaintiff's property, the trespass continues until the intruding substance is removed. If such is the case, and damages can be proved, as required, actions may be brought for uncompensated injury. In view of our holding that the tort falls within the theory of continuing trespass, we [709 P.2d 792] further find that the 3-year period of limitations must run from the date that the cause of action accrues. We reject the discovery rule as being inappropriate for a continuing trespass claim. The discovery rule begins the running of the statute of limitations when the plaintiff discovers or reasonably could have discovered, in the exercise of reasonable diligence, that he had a cause of action. U.S. Oil & Ref. Co. v. Department of Ecology, 96 Wash.2d 85, 91, 633 P.2d 1329 (1981). With circumstances, such as confront us here, and in the interests of certainty, it would be improper to expose manufacturers to claims running back for untold years when the injury many years back may have been inconsequential and the very existence of a cause of action vague and speculative. Further, in ruling that actual and substantial damages are required, we find it proper to also require that damages claimed not extend past the 3-
Page 694
year period of limitations.
Defendant argues that we should allow, as a defense, a claim of prescriptive easement and preemption by the Washington Clean Air Act. We note that RCW 4.16.020(1) creates a right of adverse possession 10 years after initial possession. In order to obtain a prescriptive easement the defendant would have to show (1) use adverse to the title owner, (2) open, notorious, continuous and uninterrupted use for 10 years, and (3) the owner's knowledge of the adverse use when he was able to enforce his rights. Dunbar v. Heinrich, 95 Wash.2d 20, 22, 622 P.2d 812 (1980). There is little likelihood that the doctrine of prescriptive easement will have application to the situation before us. To gain a prescriptive easement, the use must be open, notorious, continuous and uninterrupted for a period of 10 years. We have observed that invasion by particulate matter is not open and notorious and therefore it would indeed be difficult to establish on the part of a defendant that the prescriptive easement period had run. However that may be, there may be instances when a defendant can establish as a defense all of the elements of prescriptive easement, thereby precluding any recovery by a landowner. As a practical matter, this would indeed be a blatant and flagrant pollution of adjoining land to start the running of the prescriptive period and to forever bar the landowner from recovering for the continuing activity of the polluter. We recognize the possibility and recognize also that whether or not the invasion of the plaintiffs' land was open and notorious is a question of fact to be established in a forum other than this court.
Defendant also proposes that the Washington Clean Air Act permits only suits in nuisance. RCW 70.94.230 provides in part:
[N]othing herein shall be construed to supersede any local county, or city ordinance or resolution, or any provision of the statutory or common law pertaining to nuisance ...
RCW 70.94.901 provides in part:
Page 695
This 1967 amendatory act shall not be construed to create in any way nor to enlarge, diminish or otherwise affect in any way any private rights in any civil action for damages.
This is a civil action for damages, and the Washington Clean Air Act specifically does not preclude such suits.
In conclusion, we answer the certified questions as follows:
1. The defendant had the requisite intent to commit intentional trespass.
2. An intentional deposit of microscopic particulates, undetectable by the human senses, gives rise to a cause of action for trespass as well as a claim of nuisance.
3. A cause of action under such circumstances requires proof of actual and substantial damages.
4. The appropriate limitations period for such a trespass is 3 years, but if the trespass continues, suit for damages may be brought for any damages not recovered previously and occurring within the 3-year period preceding suit. The period of limitations runs from the date the cause of action accrues. The [709 P.2d 793] defense of easement by prescription is available if the defendant can prove each of the elements of the defense. The cause of action for trespass is not preempted by the Washington Clean Air Act.
The United States District Court for the Western District of Washington shall be notified for such further action as it deems appropriate.
DOLLIVER, C.J., and UTTER, DORE, PEARSON, BRACHTENBACH, ANDERSEN, GOODLOE, and DURHAM, JJ., concur.
14 Gulf Oil v. Gilbert, 330 U.S. 501 (1947).
330 U.S. 501 (67 S.Ct. 839, 91 L.Ed. 1055)
GULF OIL CORPORATION v. GILBERT.
No. 93.
Argued: Dec. 18, 19, 1946.
Decided: March 10, 1947.
• opinion, JACKSON [HTML]
Messrs. Bernard A. Golding and Archie D. Gray, both of Houston, Tex., for petitioner.
Mr. Max J. Gwertzman, of New York City, for respondent.
Erreur ! La référence de lien hypertexte est incorrecte.
[pic]
Mr. Justice JACKSON delivered the opinion of the Court.
The questions are whether the United States District Court has inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens and, if so, whether that power was abused in this case.
The respondent-plaintiff brought this action in the Southern District of New York, but resides at Lynchburg, Virginia, where he operated a public warehouse. He alleges that the petitioner-defendant, in violation of the ordinances of Lynchburg, so carelessly handled a delivery of gasoline to his warehouse tanks and pumps as to cause an explosion and fire which consumed the warehouse building to his damage of $41,889.10, destroyed merchandise and fixtures to his damage of $3,602.40, caused injury to his business and profits of $20,038.27, and burned the property of customers in his custody under warehousing agreements to the extent of $300,000. He asks judgment of $365,529.77 with costs and disbursements, and interest from the date of fire. The action clearly is one in tort.
The petitioner-defendant is a corporation organized under the laws of Pennsylvania, qualified to do business in both Virginia and New York, and it has designated officials of each state as agents to receive service of process. When sued in New York, the defendant, invoking the doctrine of forum non conveniens, claimed that the appropriate place for trial is Virginia where the plaintiff lives and defendant does business, where all events in litigation took place, where most of the witnesses reside, and where both state and federal courts are available to plaintiff and are able to obtain jurisdiction of the defendant.
The case, on its merits, involves no federal question and was brought in the United States District Court solely because of diversity in citizenship of the parties. Because of the charact r of its jurisdiction and the holdings of and under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the District Court considered that the law of New York as to forum non conveniens applied and that it required the case to be left to Virginia courts.1 It therefore dismissed.
The Circuit Court of Appeals disagreed as to the applicability of New York law, took a restrictive view of the application of the entire doctrine in federal courts and, one judge dissenting, reversed.2 The case is here on certiorari. 328 U.S. 830, 66 S.Ct. 1123.
It is conceded that the venue statutes of the United States permitted the plaintiff to commence his action in the Southern District of New York and empower that court to entertain it.3 But that does not settle the question whether it must do so. Indeed the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue.
This Court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances. As formulated by Mr. Justice Brandeis the rule is: 'Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.' Canada Malting Co., Ltd., v. Paterson Steamships, Ltd., 285 U.S. 413 422, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837.
We later expressly said that a state court 'may in appropriate cases apply the doctrine of forum non conveniens.' Broderick v. Rosner, 294 U.S. 629, 643, 55 S.Ct. 589, 592, 79 l.Ed. 1100, 100 A.L.R. 1133; Williams v. State of North Carolina, 317 U.S. 287, 294, n. 5, 63 S.Ct. 207, 87 L.Ed. 279, 143A.L.R. 1273. Even where federal rights binding on state courts under the Constitution are sought to be adjudged, this Court has sustained state courts in a refusal to entertain a litigation between a nonresident and a foreign corporation or between two foreign corporations. Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747; Anglo-American Provision Co. v. Davis Provision Co. No. 1, 191 U.S. 373, 24 S.Ct. 92, 48 L.Ed. 225. It has held the use of an inappropriate forum in one case an unconstitutional burden on interstate commerce. Davis v. Farmers' Co-operative Equity Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996. On substantially forum non conveniens grounds we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state. Railroad Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; but cf. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. And most recently we decided Williams v. Green Bay & Western R. Co., 326 U.S. 549, 66 S.Ct. 284, in which the Court, without questioning the validity of the doctrine held it had been applied in that case without justification.4
It is true that in cases under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., we have held that plaintiff's choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it. Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104. Those decisions do not purport to modify the doctrine as to other cases governed by the general venue statutes.
But the court below says that 'The Kepner case * * * warned against refusal of jurisdiction in a particular case controlled by congressional act; here the only difference is that congressional act, plus judicial interpretation (under the Neirbo case), spells out the result.' 153 F.2d at page 885. The Federal Employers' Liability Act, however, which controlled decision in the Kepner case, specifically provides where venue may be had in any suit on a cause of action arising under that statute. What the court below refers to as 'congressional act, plus judicial interpretation,' is the general statute of venue in diversity suits, plus our decision that it gives the defendant 'a personal privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election,' Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 168, 60 S.Ct. 153, 154, 84 L.Ed. 167, 128 A.L.R. 1437. The Federal Employers' Liability Act, as interpreted by Kepner, increases the number of places where the defendant may be sued and makes him accept the plaintiff's choice. The Neirbo case is only a declaration that if the defendant, by filing consent to be sued, waives its privilege to be sued at its place of residence, it may be sued in the federal courts at the place where it has consented to be sued. But the general venue statute plus the Neirbo interpretation do not add up to a declaration that the court must respect the choice of the plaintiff, no matter what the type of suit or issues involved. The two taken together mean only that the defendant may consent to be sued, and it is proper for the federal court to take jurisdiction, not that the plaintiff's choice cannot be questioned. The defendant's consent to be sued extends only to give the court jurisdiction of the person; it assumes that the court, having the parties before it, will apply all the applicable law, including, in those cases where it is appropriate, its discretionary judgment as to whether the suit should be entertained. In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.
The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of f rcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.
Many of the states have met misuse of venue by investing courts with a discretion to change the place of trial on various grounds, such as the convenience of witnesses and the ends of justice.5 The federal law contains no such express criteria to guide the district court in exercising its power. But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it.6
Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses.7
If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.8 But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
The law of New York as to the discretion of a court to apply the doctrine of forum non conveniens, and as to the standards that guide discretion is, so far as here involved, the same as the federal rule. Murnan v. Wabash Ry. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Wedemann v. United States Trus Co. of New York, 258 N.Y. 315, 179 N.E. 712, 79 A.L.R. 1320; see Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1. It would not be profitable, therefore, to pursue inquiry as to the source from which our rule must flow.
Turning to the question whether this is one of those rather rare cases where the doctrine should be applied, we look first to the interests of the litigants.
The plaintiff himself is not a resident of New York, nor did any event connected with the case take place there, nor does any witness with the possible exception of experts live there. No one connected with that side of the case save counsel for the plaintiff resides there, and he has candidly told us that he was retained by insurance companies interested presumably because of subrogation. His affidavits and argument are devoted to controvering claims as to defendant's inconvenience rather than to showing that the present forum serves any convenience of his own, with one exception. The only justification for trial in New York advanced here is one rejected by the district court and is set forth in the brief as follows: 'This Court can readily realize that an action of this type, involving as it does a claim for damages in an amount close to $400,000, is one which may stagger the imagination of a local jury which is surely unaccustomed to dealing with amounts of such a nature. Furthermore, removed from Lynchburg, the respondent will have an opportunity to try this case free from local influences and preconceived notions which make it difficult to procure a jury which has no previous knowledge of any of the facts herein.'
This unproven premise that jurors of New York live on terms of intimacy with $400,000 transactions is not an assumption we easily make. Nor can we assume that a jury from Lynchburg and vicinity would be 'staggered' by contemplating the value of a warehouse building that stood in their region, or of merchandise and fixtures such as were used there, nor are they likely to be staggered by the value of chattels which the people of that neighborhood put in storage. It is a strange argument on behalf of a Virginia plaintiff that the community which gave him patronage to make his business valuable is not capable of furnishing jurors who know the value of the goods they store, the building they are stored in, or the business their patronage creates. And there is no specification of any local influence, other than accurate knowledge of local conditiions, that would make a fair trial improbable. The net of this is that we cannot say the District Court was bound to entertain a provincial fear of the provincialism of a Virginia jury. That leaves the Virginia plaintiff without even a suggested reason for transporting this suit to New York.
Defendant points out that not only the plaintiff, but every person who participated in the acts charged to be negligent, resides in or near Lynchburg. It also claims a need to interplead an alleged independent contractor which made the delivery of the gasoline and which is a Virginia corporation domiciled in Lynchburg, that it cannot interplead in New York. There also are approximately 350 persons residing in and around Lynchburg who stored with plaintiff the goods for the damage to which he seeks to recover. The extent to which they have left the community since the fire and the number of them who will actually be needed is in dispute. The complaint alleges that defendant's conduct violated Lynchburg ordinances. Conditions are said to require proof by firemen and by many others. The learned and experienced trial judge was not unaware that litigants generally manage to try their cases with fewer witnesses than they predict in such motions as this. But he was justified in concluding that this trial is likely to be long and to involve calling many witnesses, and that Lynchburg, some 400 miles from New York, is the source of all proofs for either side with possible exception of e perts. Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants. Nor is it necessarily cured by the statement of plaintiff's counsel that he will see to getting many of the witnesses to the trial and that some of them 'would be delighted to come to New York to testify.' There may be circumstances where such a proposal should be given weight. In others the offer may not turn out to be as generous as defendant or court might suppose it to be. Such matters are for the District Court to decide in exercise of a sound discretion.
The court likewise could well have concluded that the task of the trial court would be simplified by trial in Virginia. If trial was in a state court, it could apply its own law to events occurring there. If in federal court by reason of diversity of citizenship, the court would apply the law of its own state in which it is likely to be experienced. The course of adjudication in New York federal court might be beset with conflict of laws problems all avoided if the case is litigated in Virginia where it arose.
We are convinced that the District Court did not exceed its powers or the bounds of its discretion in dismissing plaintiff's complaint and remitting him to the courts of his own community. The Circuit Court of Appeals took too restrictive a view of the doctrine as approved by this Court. Its judgment is reversed.
Reversed.
Mr. Justice REED and Mr. Justice BURTON dissent. They do not set out the factual reasons for their dissent since the Court's affirmance of Koster v. (American) Lumbermens Mutual casualty Co., 330 U.S. 518, 67 S.Ct. 828, would control.
Mr. Justice BLACK (dissenting).
The defendant corporation is organized under the laws of Pennsylvania, but is qualified to do business and maintains an office in New York. Plaintiff is an individual residing and doing business in Virginia. The accident in which plaintiff alleges to have been damaged occurred in Lynchburg, Virginia. Plaintiff brought this action in the Federal District Court in New York. Section 11 of the Judiciary Act of 1789, 1 Stat. 78, carried over into the Judicial Code, § 24, 28 U.S.C. 41(1), 28 U.S.C.A. § 41(1), confers jurisdiction upon federal district courts of all actions at law between citizens of different states. The Court does not suggest that the federal district court in New York lacks jurisdiction under this statute or that the venue was improper in this case. 28 U.S.C. 112, 28 U.S.C.A. § 112. Cf. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437. But it holds that a district court may abdicate its jurisdiction when a defendant shows to the satisfaction of a district court that it would be more convenient and less vexatious for the defendant if the trial were held in another jurisdiction. Neither the venue statute nor the statute which has governed jurisdiction since 1789 contains any indication or implication that a federal district court, once satisfied that jurisdiction and venue requirements have been met, may decline to exercise its jurisdiction. Except in relation to the exercise of the extraordinary admiralty and equity powers of district courts, this Court has never before held contrary to the general principle that 'the courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction.' Hyde v. Stone, 20 How. 170, 175, 15 L.Ed. 874, quoted with approval in Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697, 37 L.Ed. 546. See also Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439; Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136A.L.R. 1222; Evey v. Mexican Cent. R. Co., 5 Cir., 81 F. 294.1 Never until today has this Court held, in actions for money damages for violations of common law or statutory rights, that a district court can abdicate its statutory duty to exercise its jurisdiction for the alleged convenience of the defendant to a lawsuit. Compare Slater v. Mexican National R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900.
For reasons peculiar to the special problems of admiralty and to the extraordinary remedies of equity, the courts exercising admiralty and equity powers have been permitted at times to decline to exercise their jurisdiction. Canada Malting Co. v. Paterson S.S. Co., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837; Rogers v. Guaranty Trust Co., 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R. 720; cf. Williams v. Green Bay & W.R. Co., 326 U.S. 549, 66 S.Ct. 284. This exception is rooted in the kind of relief which these courts grant and the kinds of problems which they solve. See Meredith v. Winter Haven, 320 U.S. 228, 235, 64 S.Ct. 7, 11, 88 L.Ed. 9; Burford v. Sun Oil Co., 319 U.S. 315, 333 n. 29, 63 S.Ct. 1098, 1107, 87 L.Ed. 1424. Courts of equity developed to afford relief where a money judgment in the common law courts provided no adequate remedy for an injured person.2 From the beginning of equitable jurisdiction up to now, the chancery courts have generally granted or withheld their special remedies at their discretion; and 'courts of admiralty * * * act upon enlarged principles of equity.' O'Brien v. Miller, 168 U.S. 287, 297, 18 S.Ct. 140, 144, 42 L.Ed. 469. But this Court has, on many occasions, severely restricted the discretion of district courts to decline to grant even the extraordinary equitable remedies. Meredith v. Winter Haven, supra, and cases there cited, 320 U.S. at pages 234, 235, 64 S.Ct. at page 11, 88 L.Ed. 9. Previously federal courts have not generally been allowed the broad and indefinite discretion to dispose even of equity cases solely on a trial court's judgment of the relative convenience of the forum for the parties themselves. For a major factor in these equity decisions has been the relative ability of the forum to shape and execute its equitable remedy. Cf. Rogers v. Guaranty Trust Co., supra.
No such discretionary authority to decline to decide a case, however, has, before today, been vested in federal courts in actions for money judgments deriving from statutes or the common law.3 To engraft the doctrine of forum non conveniens upon the statutes fixing jurisdiction and proper venue in the district courts in such actions, seems to me to be far more than the mere filling in of the interstices of those statutes.4
It may be that a statute should be passed authorizing the federal district courts to decline to try so-called common law cases according to the convenience of the parties. But whether there should be such a statute, and determination of its scope and the safeguards which should surround it, are, in my judgment, questions of policy which Congress should decide. There are strong arguments presented by the Court in its opinion why federal courts exercising their common law jurisdiction should have the discretionary powers which equity courts have always possessed in dispensing equitable relief. I think equally strong arguments could be advanced to show that they should not. For any individual or corporate defendant who does part of his business in states other than the one in which he is sued will almost invariably be put to some inconvenience to defend himself. It will be a poorly represented multistate defendant who cannot produce substantial evidence and good reasons fitting the rule now adopted by this Court tending to establish that the forum of action against him is most inconvenient. The Court's new rule will thus clutter the very threshold of the federal courts with a preliminary trial of fact concerning the relative convenience of forums. The preliminary disposition of this factual question will, I believe, produce the very kind of uncertainty, confusion, and hardship which stalled and handicapped persons seeking compensation for maritime injuries following this Court's decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C, 451, Ann.Cas. 1917E, 900. The broad and indefinite discretion left to federal courts to decide the question of convenience from the welter of factors which are relevant to such a judgment, will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible. Yet plaintiffs will be asked 'to determine with certainty before bringing their actions that factual question over which courts regularly divide among themselves and within their own membership. As penalty for error, the injured individual may not only suffer serious financial loss through the delay and expense of litigation, but discover that his claim has been barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere.' Davis v. Department of Labor & Industries, 317 U.S. 249, 254, 63 S.Ct. 225, 228, 87 L.Ed. 246.
This very case illustrates the hazards of delay. It must be begun anew in another forum after the District Court, the Circuit Court of Appeals, and now this Court, have has their time-consuming say as to the relative convenience of the forum in which the plaintiff chose to seek redress. Whether the statute of limitations has run against the plaintiff, we do not know. The convenience which the individual defendant will enjoy from the Court's new rule of forum non conveniens in law actions may be thought to justify its inherent delays, uncertainties, administrative complications and hardships. But in any event, Congress has not yet said so; and I do not think that this Court should, 150 years after the passage of the Judiciary A t, fill in what it thinks is a deficiency in the deliberate policy which Congress adopted.5 Whether the doctrine of forum non conveniens is good or bad, I should wait for Congress to adopt it.
Mr. Justice RUTLEDGE joins in this opinion.
CC∅ | Transformed by Public.
1
Gilbert v. Gulf Oil Corp., D.C., 62 F.Supp. 291.
2
Gilbert v. Gulf Oil Corp., 2 Cir., 153 F.2d 883.
3
See 28 U.S.C. 112, 28 U.S.C.A. § 112; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437.
4
The doctrine did not originate in federal but in state courts. This Court in recognizing and approving it by name has never indicated that it was rejecting application of the doctrine to law actions which had been an integral and necessary part of evolution of the doctrine. And cf. Slater v. Mexican National R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. Wherever it is applied in courts of other jurisdictions, its application does not depend on whether the action is at law, Collard v. Beach, 93 App.Div. 339, 87 N.Y.S. 884; Murnan v. Wabash Ry. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N.H. 341, 168 A. 895; or in equity, Langfelder v. Universal Laboratories, 293 N.Y. 200, 56 N.E.2d 550, 155 A.L.R. 1226; Egbert v. Short, 1907, 2 Ch. 250. See footnote 1 Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828.
5
See Foster, Place of Trial—Interstate Application of Intrastate Methods of Adjustment, 44 Harv.L.Rev. 41, 47, 62.
6
See Logan v. Bank of Scotland, (1906) 1 K.B. 141; cf. La Socie te du Gaz de Paris v. La Socie te Anonyme de Navigation 'Les Armateurs Francais.' (1926) Sess.Cas. (H.L.) 13. Collard v. Beach, 93 App.Div. 339, 87 N.Y.S. 884; Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N.H. 341, 168 A. 895; see Pietraroia v. New Jersey & Hudson R.R. & Ferry Co., 197 N.Y. 434, 91 N.E. 120; Great Western Railway Co. of Canada v. Miller, 19 Mich. 305.
7
See Dainow, The Inappropriate Forum, 29 Ill.L.Rev. 867, 889.
8
See Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col.L.Rev. 1.
1
In Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58, 32 S.Ct. 169, 178, 56 L.Ed. 327, 38 L.R.A.,N.S., 44, it was stated that: 'The existence of the jurisdiction creates an implication of duty to exercise it, and that its exercise may be onerous does not militate against that implication.' Cf. Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 388, 49 S.Ct. 355, 356, 73 L.Ed. 747.
2
Although the distinction between actions at law and suits in equity in federal courts has been abolished by the adoption of the single form of civil action, Rule 2, F.R.C.P., 28 U.S.C.A. following section 723c, see 1 Moore, Federal Practice (1938) c. 2, there remains to federal courts the same discretion, no more and no less, in the exercise of special equitable remedies as existed before the adoption of the federal rules. Neither the rules, the statutes, tradition, nor practical considerations justify application of equitable discretion to actions for money judgments based on common law or statutory rights.
3
This Court, whose jurisdiction is primarily appellate, has held that it need not exercise its constitutionally granted original jurisdiction even at common law where there is another suitable forum. State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 464, 465, 65 S.Ct. 716, 729, 89 L.Ed. 1051. But the Constitution, not Congress, fixes this Co rt's jurisdiction. And it was this Court's duty to interpret its constitutional jurisdiction. It is the duty of Congress to fix the jurisdiction of the district courts by statute. It did so. It is not the duty of this Court to amend that statute.
4
'I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.' Holmes, J., dissenting in Southern Pacific Co. v. Jensen, 244 U.S. 205, 218, 221, 37 S.Ct. 524, (530), 531, 61 L.Ed. 1086, L.R.A.1918C, 451, Ann.Cas. 1917E, 900. See also dissenting opinion, State Tax Commission v. Aldrich, 316 U.S. 174, 185, 202, n. 23, 62 S.Ct. 1008, 1013, 1021, 86 L.Ed. 1358, 139 A.L.R. 1436, and authorities there collected.
5
The very law review articles which are relied upon to document this theory of a federal rule of forum non conveniens reveal that judicial adoption of this theory without a new act of Congress would be an unwarranted judicial innovation. Foster, Place of Trial—Interstate Application of Intrastate Methods of Adjustment, 44 Harv.L.Rev. 41, 52; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col.L.Rev. 1, 18. For Instance, it is stated that 'No matter how little dispute there is as to the desirability of such legislation, there is comparatively little chance of overcoming legislative inertia and securing its passage unless some accident happens to focus attention upon it. The best hope is that the courts will feel free to take appropriate action without specific legislation authorizing them to do so.' Foster, supra at 52.
15
Just v. Marinette County, 6 Wis.2d 7 (Supreme Court of Wisconsin)
Just v. Marinette County
6 Wis. 2d 7 (1972)
201 N.W.2d 761
JUST and wife, Appellants, v. MARINETTE COUNTY, Respondent: STATE, Impleaded Respondent. MARINETTE COUNTY, Respondent, v. JUST and wife, Appellants: STATE, Impleaded Respondent.
Nos. 106, 107.
Supreme Court of Wisconsin.
Argued September 11, 1972.
Decided October 31, 1972.
*9 For the appellants there was a brief by Evrard, Evrard, Duffy, Holman, Faulds and Peterson and Wayne R. Peterson, all of Green Bay, and oral argument by Wayne R. Peterson.
For the respondent there was a brief by James E. Murphy, corporation counsel.
For the State (intervening pursuant to sec. 274.12 (6), Stats.) the cause was argued by Steven M. Schur, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
A brief amicus curiae was filed by McBurney, Musolf & Whipple, S.C., and Carlyle H. Whipple, all of Madison.
HALLOWS, C. J.
Marinette county's shoreland zoning ordinance number 24 was adopted September 19, 1967, became effective October 9, 1967, and follows a model ordinance published by the Wisconsin Department of Resource Development in July of 1967. See Kusler, Water Quality Protection For Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution, 1970 *10 Wis. L. Rev. 35, 62, 63. The ordinance was designed to meet standards and criteria for shoreland regulation which the legislature required to be promulgated by the department of natural resources under sec. 144.26, Stats. These standards are found in 6 Wis. Adm. Code, sec. NR 115.03, May, 1971, Register No. 185. The legislation, secs. 59.971 and 144.26, authorizing the ordinance was enacted as a part of the Water Quality Act of 1965 by ch. 614, Laws of 1965.
Shorelands for the purpose of ordinances are defined in sec. 59.971 (1), Stats., as lands within 1,000 feet of the normal high-water elevation of navigable lakes, ponds, or flowages and 300 feet from a navigable river or stream or to the landward side of the flood plain, whichever distance is greater. The state shoreland program is unique. All county shoreland zoning ordinances must be approved by the department of natural resources prior to their becoming effective. 6 Wis. Adm. Code, sec. NR 115.04, May, 1971, Register No. 185. If a county does not enact a shoreland zoning ordinance which complies with the state's standards, the department of natural resources may enact such an ordinance for the county. Sec. 59.971 (6).
There can be no disagreement over the public purpose sought to be obtained by the ordinance. Its basic purpose is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands. In the Navigable Waters Protection Act, sec. 144.26, Stats., the purpose of the state's shoreland regulation program is stated as being to "aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare."[1] In sec. 59.971 (1), which grants authority *11 for shoreland zoning to counties, the same purposes are reaffirmed.[2] The Marinette county shoreland zoning ordinance in secs. 1.2 and 1.3 states the uncontrolled use of shorelands and pollution of navigable waters of Marinette county adversely affect public health, safety, convenience, and general welfare and impair the tax base.
The shoreland zoning ordinance divides the shorelands of Marinette county into general purpose districts, general recreation districts, and conservancy districts. A "conservancy" district is required by the statutory minimum standards and is defined in sec. 3.4 of the ordinance to include "all shorelands designated as swamps or marshes on the United States geological survey maps which have been designated as the Shoreland Zoning Map of Marinette County, Wisconsin, or on the detailed Insert Shoreland Zoning Maps." The ordinance provides *12 for permitted uses[3] and conditional uses.[4] One of the conditional uses requiring a permit under sec. 3.42 (4) is the filling, drainage or dredging of wetlands according to the provisions of sec. 5.0 of the ordinance. "Wetlands" are defined in sec. 2.29 as "[a]reas where ground water is at or near the surface much of the year or where any segment of plant cover is deemed an aquatic according to N. C. Fassett's `Manual of Aquatic Plants.'" Sec. 5.42 (2) of the ordinance requires a conditional use permit for any filling or grading "Of any area which is within three hundred feet horizontal distance of a navigable water and which has surface drainage toward the water *13 and on which there is: (a) Filling of more than five hundred square feet of any wetland which is contiguous to the water ... (d) Filling or grading of more than 2,000 square feet on slopes of twelve percent or less."
In April of 1961, several years prior to the passage of this ordinance, the Justs purchased 36.4 acres of land in the town of Lake along the south shore of Lake Noquebay, a navigable lake in Marinette county. This land had a frontage of 1,266.7 feet on the lake and was purchased partially for personal use and partially for resale. During the years 1964, 1966, and 1967, the Justs made five sales of parcels having frontage and extending back from the lake some 600 feet, leaving the property involved in these suits. This property has a frontage of 366.7 feet and the south one half contains a stand of cedar, pine, various hardwoods, birch and red maple. The north one half, closer to the lake, is barren of trees except immediately along the shore. The south three fourths of this north one half is populated with various plant grasses and vegetation including some plants which N. C. Fassett in his manual of aquatic plants has classified as "aquatic." There are also nonaquatic plants which grow upon the land. Along the shoreline there is a belt of trees. The shoreline is from one foot to 3.2 feet higher than the lake level and there is a narrow belt of higher land along the shore known as a "pressure ridge" or "ice heave," varying in width from one to three feet. South of this point, the natural level of the land ranges one to two feet above lake level. The land slopes generally toward the lake but has a slope less than 12 percent. No water flows onto the land from the lake, but there is some surface water which collects on land and stands in pools.
The land owned by the Justs is designated as swamps or marshes on the United States Geological Survey Map and is located within 1,000 feet of the normal high-water *14 elevation of the lake. Thus, the property is included in a conservancy district and, by sec. 2.29 of the ordinance, classified as "wetlands." Consequently, in order to place more than 500 square feet of fill on this property, the Justs were required to obtain a conditional use permit from the zoning administrator of the county and pay a fee of $20 or incur a forfeiture of $10 to $200 for each day of violation.
In February and March of 1968, six months after the ordinance became effective, Ronald Just, without securing a conditional use permit, hauled 1,040 square yards of sand onto this property and filled an area approximately 20 feet wide commencing at the southwest corner and extending almost 600 feet north to the northwest corner near the shoreline, then easterly along the shoreline almost to the lot line. He stayed back from the pressure ridge about 20 feet. More than 500 square feet of this fill was upon wetlands located contiguous to the water and which had surface drainage toward the lake. The fill within 300 feet of the lake also was more than 2,000 square feet on a slope less than 12 percent. It is not seriously contended that the Justs did not violate the ordinance and the trial court correctly found a violation.
The real issue is whether the conservancy district provisions and the wetlands-filling restrictions are unconstitutional because they amount to a constructive taking of the Justs' land without compensation. Marinette county and the state of Wisconsin argue the restrictions of the conservancy district and wetlands provisions constitute a proper exercise of the police power of the state and do not so severely limit the use or depreciate the value of the land as to constitute a taking without compensation.
To state the issue in more meaningful terms, it is a conflict between the public interest in stopping the *15 despoliation of natural resources, which our citizens until recently have taken as inevitable and for granted, and an owner's asserted right to use his property as he wishes. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. The securing or taking of a benefit not presently enjoyed by the public for its use is obtained by the government through its power of eminent domain. The distinction between the exercise of the police power and condemnation has been said to be a matter of degree of damage to the property owner. In the valid exercise of the police power reasonably restricting the use of property, the damage suffered by the owner is said to be incidental. However, where the restriction is so great the landowner ought not to bear such a burden for the public good, the restriction has been held to be a constructive taking even though the actual use or forbidden use has not been transferred to the government so as to be a taking in the traditional sense. Stefan Auto Body v. State Highway Comm. (1963), 21 Wis. 2d 363, 124 N.W.2d 319; Buhler v. Racine County (1966), 33 Wis. 2d 137, 146 N.W.2d 403; Nick v. State Highway Comm. (1961), 13 Wis. 2d 511, 109 N.W.2d 71; State v. Becker (1934), 215 Wis. 564, 255 N.W. 144. Whether a taking has occurred depends upon whether "the restriction practically or substantially renders the land useless for all reasonable purposes." Buhler v. Racine County, supra. The loss caused the individual must be weighed to determine if it is more than he should bear. As this court stated in Stefan, at pages 369, 370, "... if the damage is such as to be suffered by many similarly situated and is in the nature of a restriction on the use to which land may be put and ought to be borne by the individual as a member of society for the good of the public safety, health, or general welfare, it is said to *16 be a reasonable exercise of the police power, but if the damage is so great to the individual that he ought not to bear it under contemporary standards, then courts are inclined to treat it as a `taking' of the property or an unreasonable exercise of the police power."
Many years ago, Professor Freund stated in his work on The Police Power, sec. 511, at 546, 547, "... it may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful .... From this results the difference between the power of eminent domain and the police power, that the former recognizes a right to compensation, while the latter on principle does not." Thus the necessity for monetary compensation for loss suffered to an owner by police power restriction arises when restrictions are placed on property in order to create a public benefit rather than to prevent a public harm. 1 Rathkopf, The Law of Zoning and Planning, ch. 6, p. 6-7.
This case causes us to re-examine the concepts of public benefit in contrast to public harm and the scope of an owner's right to use of his property. In the instant case we have a restriction on the use of a citizens' property, not to secure a benefit for the public, but to prevent a harm from the change in the natural character of the citizens' property. We start with the premise that lakes and rivers in their natural state are unpolluted and the pollution which now exists is man made. The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment. What makes this case different from most condemnation or police power zoning cases is the interrelationship of the wetlands, the swamps and the natural environment of shorelands to *17 the purity of the water and to such natural resources as navigation, fishing, and scenic beauty. Swamps and wetlands were once considered wasteland, undesirable, and not picturesque. But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of the water in our lakes and streams. Swamps and wetlands are a necessary part of the ecological creation and now, even to the uninitiated, possess their own beauty in nature.
Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes? The great forests of our state were stripped on the theory man's ownership was unlimited. But in forestry, the land at least was used naturally, only the natural fruit of the land (the trees) were taken. The despoilage was in the failure to look to the future and provide for the reforestation of the land. An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses.
This is not a case where an owner is prevented from using his land for natural and indigenous uses. The uses consistent with the nature of the land are allowed and other uses recognized and still others permitted by special permit. The shoreland zoning ordinance prevents to some extent the changing of the natural character of the land within 1,000 feet of a navigable lake and 300 feet of a navigable river because of such land's interrelation to the contiguous water. The changing of wetlands *18 and swamps to the damage of the general public by upsetting the natural environment and the natural relationship is not a reasonable use of that land which is protected from police power regulation. Changes and filling to some extent are permitted because the extent of such changes and filling does not cause harm. We realize no case in Wisconsin has yet dealt with shoreland regulations and there are several cases in other states which seem to hold such regulations unconstitutional; but nothing this court has said or held in prior cases indicates that destroying the natural character of a swamp or a wetland so as to make that location available for human habitation is a reasonable use of that land when the new use, although of a more economical value to the owner, causes a harm to the general public.
Wisconsin has long held that laws and regulations to prevent pollution and to protect the waters of this state from degradation are valid police-power enactments. State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 300 N.W. 187; State ex rel. La Follette v. Reuter (1967), 33 Wis. 2d 384, 147 N.W.2d 304; Reuter v. Department of Natural Resources (1969), 43 Wis. 2d 272, 168 N.W.2d 860. The active public trust duty of the state of Wisconsin in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty. Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N. W. 2d 40. To further this duty, the legislature may delegate authority to local units of the government, which the state did by requiring counties to pass shoreland zoning ordinances. Menzer v. Elkhart Lake (1971), 51 Wis. 2d 70, 186 N.W.2d 290.
This is not a case of an isolated swamp unrelated to a navigable lake or stream, the change of which would cause no harm to public rights. Lands adjacent to or near navigable waters exist in a special relationship to the state. They have been held subject to special taxation, *19 Soens v. Racine (1860), 10 Wis. 214 (*271), and are subject to the state public trust powers, Wisconsin Power & Light Co. v. Public Service Comm. (1958), 5 Wis. 2d 167, 92 N.W.2d 241; and since the Laws of 1935, ch. 303, counties have been authorized to create special zoning districts along waterways and zone them for restrictive conservancy purposes.[5] The restrictions in the Marinette county ordinance upon wetlands within 1,000 feet of Lake Noquebay which prevent the placing of excess fill upon such land without a permit is not confiscatory or unreasonable.
Cases wherein a confiscation was found cannot be relied upon by the Justs. In State v. Herwig (1962), 17 Wis. 2d 442, 117 N.W.2d 335, a "taking" was found where a regulation which prohibited hunting on farmland had the effect of establishing a game refuge and resulted in an unnatural, concentrated foraging of the owner's land by waterfowl. In State v. Becker, supra, the court held void a law which established a wildlife refuge (and prohibited hunting) on private property. In Benka v. Consolidated Water Power Co. (1929), 198 Wis. 472, 224 N.W. 718, the court held if damages to plaintiff's property were in fact caused by flooding from a dam constructed by a public utility, those damages constituted a "taking" within the meaning of the condemnation statutes. In Bino v. Hurley (1956), 273 Wis. 10, 76 N.W.2d 571, the court held unconstitutional as a "taking" without compensation an ordinance which, in attempting to prevent pollution, prohibited the owners of land surrounding a lake from bathing, boating, or swimming in the lake. In Piper v. Ekern (1923), 180 Wis. 586, 593, *20 194 N.W. 159, 162, the court held a statute which limited the height of buildings surrounding the state capitol to be unnecessary for the public health, safety, or welfare and, thus, to constitute an unreasonable exercise of the police power. In all these cases the unreasonableness of the exercise of the police power lay in excessive restriction of the natural use of the land or rights in relation thereto.
Cases holding the exercise of police power to be reasonable likewise provide no assistance to Marinette county in their argument. In More-Way North Corp. v. State Highway Comm. (1969), 44 Wis. 2d 165, 170 N.W.2d 749, the court held that no "taking" occurred as a result of the state's lowering the grade of a highway, which necessitated plaintiff's reconstruction of its parking lot and loss of 42 parking spaces. In Wisconsin Power & Light Co. v. Columbia County (1958), 3 Wis. 2d 1, 87 N.W.2d 279, no "taking" was found where the county, in relocating a highway, deposited gravel close to plaintiff's tower, causing it to tilt. In Nick v. State Highway Comm., supra, the court held where property itself is not physically taken by the state, a restriction of access to a highway, while it may decrease the value of the land, does not entitle the owner to compensation. In Buhler the court held the mere depreciation of value was not sufficient ground to enjoin the county from enforcing the ordinance. In Hasslinger v. Hartland (1940), 234 Wis. 201, 206, 290 N.W. 647, the court noted that "[a]ssuming an actionable nuisance by the creation of odors which make occupation of plaintiffs' farm inconvenient ... and impair its value, it cannot be said that defendant has dispossessed plaintiffs or taken their property."
The Justs rely on several cases from other jurisdictions which have held zoning regulations involving flood plain districts, flood basins and wetlands to be so confiscatory as to amount to a taking because the owners of the land *21 were prevented from improving such property for residential or commercial purposes. While some of these cases may be distinguished on their facts, it is doubtful whether these differences go to the basic rationale which permeates the decision that an owner has a right to use his property in any way and for any purpose he sees fit. In Dooley v. Town Plan & Zoning Comm. (1964), 151 Conn. 304, 197 Atl. 2d 770, the court held the restriction on land located in a flood plain district prevented its being used for residential or business purposes and thus the restriction destroyed the economic value to the owner. The court recognized the land was needed for a public purpose as it was part of the area in which the tidal stream overflowed when abnormally high tides existed, but the property was half a mile from the ocean and therefore could not be used for marina or boathouse purposes. In Morris County Land Improvement Co. v. Parsippany-Troy Hills Township (1963), 40 N. J. 539, 193 Atl. 2d 232, a flood basin zoning ordinance was involved which required the controversial land to be retained in its natural state. The plaintiff owned 66 acres of a 1,500-acre swamp which was part of a river basin and acted as a natural detention basin for flood waters in times of very heavy rainfall. There was an extraneous issue that the freezing regulations were intended as a stopgap until such time as the government would buy the property under a flood-control project. However, the court took the view the zoning had an effect of preserving the land as an open space as a water-detention basin and only the government or the public would be benefited, to the complete damage of the owner.
In State v. Johnson (Me. 1970), 265 Atl. 2d 711, the Wetlands Act restricted the alteration and use of certain wetlands without permission. The act was a conservation measure enacted under the police power to protect the ecology of areas bordering the coastal waters. The plaintiff *22 owned a small tract of a saltwater marsh which was flooded at high tide. By filling, the land would be adapted for building purposes. The court held the restrictions against filling constituted a deprivation of a reasonable use of the owner's property and, thus, an unreasonable exercise of the police power. In MacGibbon v. Board of Appeals of Duxbury (1970), 356 Mass. 635, 255 N.E.2d 347, the plaintiff owned seven acres of land which were under water about twice a month in a shoreland area. He was denied a permit to excavate and fill part of his property. The purpose of the ordinance was to preserve from despoilage natural features and resources such as salt marshes, wetlands, and ponds. The court took the view the preservation of privately owned land in its natural, unspoiled state for the enjoyment and benefit of the public by preventing the owner from using it for any practical purpose was not within the limit and scope of the police power and the ordinance was not saved by the use of special permits.
It seems to us that filling a swamp not otherwise commercially usable is not in and of itself an existing use, which is prevented, but rather is the preparation for some future use which is not indigenous to a swamp. Too much stress is laid on the right of an owner to change commercially valueless land when that change does damage to the rights of the public. It is observed that a use of special permits is a means of control and accomplishing the purpose of the zoning ordinance as distinguished from the old concept of providing for variances. The special permit technique is now common practice and has met with judicial approval, and we think it is of some significance in considering whether or not a particular zoning ordinance is reasonable.
A recent case sustaining the validity of a zoning ordinance establishing a flood plain district is Turnpike Realty Co. v. Town of Dedham (Mass. 1972), 284 N. E. 2d *23 891. The court held the validity of the ordinance was supported by valid considerations of public welfare, the conservation of "natural conditions, wildlife and open spaces." The ordinance provided that lands which were subject to seasonal or periodic flooding could not be used for residences or other purposes in such a manner as to endanger the health, safety or occupancy thereof and prohibited the erection of structures or buildings which required land to be filled. This case is analogous to the instant facts. The ordinance had a public purpose to preserve the natural condition of the area. No change was allowed which would injure the purposes sought to be preserved and through the special permit technique, particular land within the zoning district could be excepted from the restrictions.
The Justs argue their property has been severely depreciated in value. But this depreciation of value is not based on the use of the land in its natural state but on what the land would be worth if it could be filled and used for the location of a dwelling. While loss of value is to be considered in determining whether a restriction is a constructive taking, value based upon changing the character of the land at the expense of harm to public rights is not an essential factor or controlling.
We are not unmindful of the warning in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 416, 43 Sup. Ct. 158, 67 L. Ed. 322:
"... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
This observation refers to the improvement of the public condition, the securing of a benefit not presently enjoyed and to which the public is not entitled. The shoreland zoning ordinance preserves nature, the environment, and natural resources as they were created and to which the *24 people have a present right.[6] The ordinance does not create or improve the public condition but only preserves nature from the despoilage and harm resulting from the unrestricted activities of humans.
We note the lower court dismissed the action commenced by the Justs, although it sought a declaratory judgment and the rights of the Justs were declared. This dismissal is in conflict with the procedure which this court has made clear should be followed, namely, that the complaint should not be dismissed when contrary to the plaintiffs' contention, but rather the judgment should set forth the declaratory adjudication. City of Milwaukee v. Milwaukee County (1965), 27 Wis. 2d 53, 67, 133 N.W.2d 393; David A. Ulrich, Inc. v. Saukville (1959), 7 Wis. 2d 173, 181, 96 N.W.2d 612; Denning v. Green Bay (1955), 271 Wis. 230, 72 N.W.2d 730.
In commenting on the propriety of its deciding the issue of constitutionality of the ordinance, the trial court quoted State v. Stehlek (1953), 262 Wis. 642, 645, 56 N. W. 2d 514:
"The exercise of the power to declare laws unconstitutional by inferior courts should be carefully limited and avoided if possible. The authorities are to the effect that unless it appears clearly beyond a reasonable doubt that the statute is unconstitutional, it is considered better practice for the court to assume the statute is constitutional, until the contrary is decided by a court of appellate jurisdiction."
This view has consistently been followed. State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 574, 76 N.W.2d 382; White House Milk Co. v. Reynolds (1960), *25 12 Wis. 2d 143, 106 N.W.2d 441; Associated Hospital Service v. Milwaukee (1961), 13 Wis. 2d 447, 474, 109 N.W.2d 271; City of Milwaukee v. Hoffmann (1965), 29 Wis. 2d 193, 198, 138 N.W.2d 223. In Gregorski the district court of Milwaukee held a statute constitutional and we affirmed the holding of constitutionality by the circuit court when it denied a writ of prohibition. We pointed out the above language did not justify an inference the trial court could not pass upon the constitutionality of a statute. In White House we reversed the circuit court's holding of unconstitutionality and quoted the Stehlek Case without comment. In Associated Hospital the circuit court denied summary judgment on the ground the constitutionality question required hearing evidence. We recognized the circuit court's power to decide the issue and stated we were hesitant "to lay down any rule governing the exercise of discretion by trial courts, when confronted with an issue of constitutionality of a statute on demurrer or motion for summary judgment ..." but stated "it is better practice for it to assume the statute is constitutional until the appellate court has passed upon it except where unconstitutionality is apparent beyond a reasonable doubt." (p. 474) In Hoffmann we affirmed the circuit court which reversed the county court in holding a city ordinance unconstitutional and pointed out the county court had decided a question of constitutionality when one party was not represented by counsel, the other side had stated it was not ready for trial, without the benefit of briefs and without giving a written reason for the holding.
Although the practice for trial courts not to hold laws unconstitutional has not been uniformly followed, nevertheless, it is our belief many lawyers have been and are bringing to the federal courts cases involving questions of constitutionality of state laws because of the limitation *26 placed on state courts in the exercise of the power to declare a law unconstitutional.
We think that when a constitutional issue is now presented to the trial courts of this state, it is the better practice for those courts to recognize its importance, have the issue thoroughly briefed, and fully presented. The issue should be decided as any other important issue with due consideration. The practice of assuming constitutionality, until the contrary is decided by an appellate court, is no longer necessary or workable. Of course, a presumption of constitutionality exists until declared otherwise by a competent court, which we think the trial courts of Wisconsin are, because a regularly enacted statute is presumed to be constitutional and the party attacking the statute must meet the burden of proof of showing unconstitutionality beyond a reasonable doubt.
By the Court.The judgment in Case No. 106, dismissing the Justs' action, is modified to set forth the declaratory adjudication that the shoreland zoning ordinance of respondent Marinette county is constitutional; that the Justs' property constitutes wetlands and that particularly the prohibition in the ordinance against the filling of wetlands is constitutional; and the judgment, as so modified, is affirmed. The judgment in Case No. 107, declaring a forfeiture, is affirmed.
NOTES
[1] "144.26 Navigable waters protection law. (1) To aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans and authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state's water resources. The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the regulations shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty."
[2] "59.971 Zoning of shorelands on navigable waters. (1) To effect the purposes of s. 144.26 and to promote the public health, safety and general welfare, counties may, by ordinance enacted separately from ordinances pursuant to s. 59.97, zone all lands (referred to herein as shorelands) in their unincorporated areas within the following distances from the normal high-water elevation of navigable waters as defined in s. 144.26 (2) (d): 1,000 feet from a lake, pond or flowage; 300 feet from a river or stream or to the landward side of the flood plain, whichever distance is greater. If the navigable water is a glacial pothole lake, the distance shall be measured from the high watermark thereof."
[3] "3.41 Permitted Uses.
"(1) Harvesting of any wild crop such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds.
"(2) Sustained yield forestry subject to the provisions of Section 5.0 relating to removal of shore cover.
"(3) Utilities such as, but not restricted to, telephone, telegraph and power transmission lines.
"(4) Hunting, fishing, preservation of scenic, historic and scientific areas and wildlife preserves.
"(5) Non-resident buildings used solely in conjunction with raising water fowl, minnows, and other similar lowland animals, fowl or fish.
"(6) Hiking trails and bridle paths.
"(7) Accessory uses.
"(8) Signs, subject to the restriction of Section 2.0."
[4] "3.42 Conditional Uses. The following uses are permitted upon issuance of a Conditional Use Permit as provided in Section 9.0 and issuance of a Department of Resource Development permit where required by Section 30.11, 30.12, 30.19, 30.195 and 31.05 of the Wisconsin Statutes.
"(1) General farming provided farm animals shall be kept one hundred feet from any non-farm residence.
"(2) Dams, power plants, flowages and ponds.
"(3) Relocation of any water course.
"(4) Filling, drainage or dredging of wetlands according to the provisions of Section 5.0 of this ordinance.
"(5) Removal of topsoil or peat.
"(6) Cranberry bogs.
"(7) Piers, docks, boathouses."
[5] In Jefferson County v. Timmel (1952), 261 Wis. 39, 51 N.W.2d 518, the constitutionality of a conservancy district use restriction was upheld as being based on a valid exercise of police power. The purpose for this conservancy district, however, was for highway safety and not for the prevention of pollution and the protection of the public trust in navigable waters.
[6] On the letterhead of the Jackson County Zoning and Sanitation Department, the following appears: "The land belongs to the people ... a little of it to those dead ... some to those living ... but most of it belongs to those yet to be born..."
16
National Audubon Society v. Department of Water and Power of the City of Los Angeles,658 P.2d 709 (Sup. Ct. Calif. 1983)
1 Supreme Court of California,In Bank.
NATIONAL AUDUBON SOCIETY et al., Petitioners, v. The SUPERIOR COURT OF ALPINE COUNTY, Respondent; DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES et al., Real Parties in Interest.
1 S.F. 24368.
2 Decided: February 17, 1983
F. Bruce Dodge, Morrison & Foerster, San Francisco, Sanford M. Skaggs, Palmer Brown Madden, Maria P. Rivera and Van Voorhis & Skaggs, Walnut Creek, for petitioners. Antonio Rossmann, Muenzberg & Thomson, James S. Thomson, Sacramento, Robin G. Pulich, Greene, Kelley & Tobriner, E. Clement Shute, Jr., and Shute, Mihaly & Weinberger, San Francisco, Frank A. Lowe, Oakland, A. Love, Long Beach, as amici curiae on behalf of petitioners. No appearance for respondent. Adolph Moskovitz, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Ira Reiner, City Atty., Edward C. Farrell, Chief Asst. City Atty., Kenneth W. Downey, Asst. City Atty., George Deukmejian, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Gregory K. Wilkinson, Jan S. Stevens, Bruce S. Flushman, Deputy Attys. Gen., San Francisco, John R. Bury, Tom P. Gilfoy, Philip Walsh, Jennifer Moran, Elizabeth J. Bigman, Rosemead, Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C. (United States), Donald B. Ayer, and Francis M. Goldsherry II, U.S. Attys., Stuart L. Somach and Mary Beth Uitti, Asst. U.S. Attys., Sacramento, Jacques B. Gelin, Richard J. Lazarus, Washington, D.C., Arthur L. Littleworth, Richard T. Gill, Anderson and Best, Best & Krieger, Riverside, for real parties in interest. Downey, Brand, Seymour & Rohwer, Anne J. Schneider, Sacramento, DeBlanc & Alexander, and Anthony E. Alexander, Los Angeles, as amici curiae on behalf of real parties in interest. George P. Agnost, City Atty., McMorris M. Dow, Deputy City Atty., San Francisco, Jerome B. Falk, Jr., Brian E. Gray and Howard, Rice, Nemeravski, Canady & Pollak, San Francisco, as amici curiae.
Mono Lake, the second largest lake in California, sits at the base of the Sierra Nevada escarpment near the eastern entrance to Yosemite National Park. The lake is saline; it contains no fish but supports a large population of brine shrimp which feed vast numbers of nesting and migratory birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of Northern Phalarope, Wilson's Phalarope, and Eared Greve. Towers and spires of tufa on the north and south shores are matters of geological interest and a tourist attraction.
Although Mono Lake receives some water from rain and snow on the lake surface, historically most of its supply came from snowmelt in the Sierra Nevada. Five freshwater streams—Mill, Lee Vining, Walker, Parker and Rush Creeks—arise near the crest of the range and carry the annual runoff to the west shore of the lake. In 1940, however, the Division of Water Resources, the predecessor to the present California Water Resources Board,1 granted the Department of Water and Power of the City of Los Angeles (hereafter DWP) a permit to appropriate virtually the entire flow of four of the five streams flowing into the lake. DWP promptly constructed facilities to divert about half the flow of these streams into DWP's Owens Valley aqueduct. In 1970 DWP completed a second diversion tunnel, and since that time has taken virtually the entire flow of these streams.
As a result of these diversions, the level of the lake has dropped; the surface area has diminished by one-third; one of the two principal islands in the lake has become a peninsula, exposing the gull rookery there to coyotes and other predators and causing the gulls to abandon the former island. The ultimate effect of continued diversions is a matter of intense dispute, but there seems little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled.2
Plaintiffs filed suit in superior court to enjoin the DWP diversions on the theory that the shores, bed and waters of Mono Lake are protected by a public trust. Plaintiffs' suit was transferred to the federal district court, which requested that the state courts determine the relationship between the public trust doctrine and the water rights system, and decide whether plaintiffs must exhaust administrative remedies before the Water Board prior to filing suit. The superior court then entered summary judgments against plaintiffs on both matters, ruling that the public trust doctrine offered no independent basis for challenging the DWP diversions, and that plaintiffs had failed to exhaust administrative remedies. Plaintiffs petitioned us directly for writ of mandate to review that decision; in view of the importance of the issues presented, we issued an alternative writ. (See County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 428 P.2d 593.)
This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values (Marks v. Whitney (1971) 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374), the two systems of legal thought have been on a collision course. (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233.) They meet in a unique and dramatic setting which highlights the clash of values. Mono Lake is a scenic and ecological treasure of national significance, imperiled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the board evident, the cost of curtailing diversions substantial.
Attempting to integrate the teachings and values of both the public trust and the appropriative water rights system, we have arrived at certain conclusions which we briefly summarize here. In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars DWP or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust. The corollary rule which evolved in tideland and lakeshore cases barring conveyance of rights free of the trust except to serve trust purposes cannot, however, apply without modification to flowing waters. The prosperity and habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream. The state must have the power to grant nonvested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values, however, may result in needless destruction of those values. Accordingly, we believe that before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.
The water rights enjoyed by DWP were granted, the diversion was commenced, and has continued to the present without any consideration of the impact upon the public trust. An objective study and reconsideration of the water rights in the Mono Basin is long overdue. The water law of California—which we conceive to be an integration including both the public trust doctrine and the board-administered appropriative rights system—permits such a reconsideration; the values underlying that integration require it.
With regard to the secondary issue of exhaustion of administrative remedies, the powers, experience, and expertise of the Water Board all argue in favor of granting that agency primary jurisdiction. Long-established precedent, however, declares that courts have concurrent jurisdiction in water right controversies. The Legislature, instead of overturning that precedent, has implicitly acknowledged its vitality by providing a procedure under which the courts can refer water rights disputes to the water board as referee. We therefore conclude that the courts may continue to exercise concurrent jurisdiction, but note that in cases where the board's experience or expert knowledge may be useful the courts should not hesitate to seek such aid.
1. Background and history of the Mono Lake litigation.
DWP supplies water to the City of Los Angeles. Early in this century, it became clear that the city's anticipated needs would exceed the water available from local sources, and so in 1913 the city constructed an aqueduct to carry water from the Owens River 233 miles over the Antelope-Mojave plateau into the coastal plain and thirsty city.
The city's attempt to acquire rights to water needed by local farmers met with fierce, and at times violent, opposition. (See generally County of Inyo v. Public Utilities Com. (1980) 26 Cal.3d 154, 156–157, 161 Cal.Rptr. 172, 604 P.2d 566; Kahrl, Water and Power: The Conflict Over Los Angeles' Water Supply in the Owens Valley (1982).) But when the “Owens Valley War” was over, virtually all the waters of the Owens River and its tributaries flowed south to Los Angeles. Owens Lake was transformed into an alkali flat.3
The city's rapid expansion soon strained this new supply, too, and prompted a search for water from other regions. The Mono Basin was a predictable object of this extension, since it lay within 50 miles of the natural origin of Owens River, and thus could easily be integrated into the existing aqueduct system.
After purchasing the riparian rights incident to Lee Vining, Walker, Parker and Rush Creeks, as well as the riparian rights pertaining to Mono Lake,4 the city applied to the Water Board in 1940 for permits to appropriate the waters of the four tributaries. At hearings before the board, various interested individuals protested that the city's proposed appropriations would lower the surface level of Mono Lake and thereby impair its commercial, recreational and scenic uses.
The board's primary authority to reject that application lay in a 1921 amendment to the Water Commission Act of 1913, which authorized the board to reject an application “when in its judgment the proposed appropriation would not best conserve the public interest.” (Stats. 1921, ch. 329, § 1, p. 443, now codified as Wat.Code, § 1255.) 5 The 1921 enactment, however, also “declared to be the established policy of this state that the use of water for domestic purposes is the highest use of water” (id., now codified as Wat.Code, § 1254), and directed the Water Board to be guided by this declaration of policy. Since DWP sought water for domestic use, the board concluded that it had to grant the application notwithstanding the harm to public trust uses of Mono Lake.6
The board's decision states that “[i]t is indeed unfortunate that the City's proposed development will result in decreasing the aesthetic advantages of Mono Basin but there is apparently nothing that this office can do to prevent it. The use to which the City proposes to put the water under its Applications ․ is defined by the Water Commission Act as the highest to which water may be applied and to make available unappropriated water for this use the City has, by the condemnation proceedings described above, acquired the littoral and riparian rights on Mono Lake and its tributaries south of Mill Creek. This office therefore has no alternative but to dismiss all protests based upon the possible lowering of the water level in Mono Lake and the effect that the diversion of water from these streams may have upon the aesthetic and recreational value of the Basin.” (Div.Wat. Resources Dec. 7053, 7055, 8042 & 8043 (Apr. 11, 1940), at p. 26, italics added.) 7
By April of 1941, the city had completed the extension of its aqueduct system into the Mono Basin by construction of certain conduits, reservoirs at Grant and Crowley Lakes, and the Mono Craters Tunnel from the Mono Basin to the Owens River. In the 1950's, the city constructed hydroelectric power plants along the system to generate electricity from the energy of the appropriated water as it flowed downhill into the Owens Valley. Between 1940 and 1970, the city diverted an average of 57,067 acre-feet of water per year from the Mono Basin. The impact of these diversions on Mono Lake was clear and immediate: the lake's surface level receded at an average of 1.1 feet per year.
In June of 1970, the city completed a second aqueduct designed to increase the total flow into the aqueduct by 50 percent.8 Between 1970 and 1980, the city diverted an average of 99,580 acre-feet per year from the Mono Basin. By October of 1979, the lake had shrunk from its prediversion area of 85 square miles to an area of 60.3 square miles. Its surface level had dropped to 6,373 feet above sea level, 43 feet below the prediversion level.9
No party seriously disputes the facts set forth above. However, the parties hotly dispute the projected effects of future diversions on the lake itself, as well as the indirect effects of past, present and future diversions on the Mono Basin environment.
DWP expects that its future diversions of about 100,000 acre-feet per year will lower the lake's surface level another 43 feet and reduce its surface area by about 22 square miles over the next 80 to 100 years, at which point the lake will gradually approach environmental equilibrium (the point at which inflow from precipitation, groundwater and nondiverted tributaries equals outflow by evaporation and other means). At this point, according to DWP, the lake will stabilize at a level 6,330 feet above the sea's, with a surface area of approximately 38 square miles. Thus, by DWP's own estimates, unabated diversions will ultimately produce a lake that is about 56 percent smaller on the surface and 42 percent shallower than its natural size.
Plaintiffs consider these projections unrealistically optimistic. They allege that, 50 years hence, the lake will be at least 50 feet shallower than it now is, and hold less than 20 percent of its natural volume. Further, plaintiffs fear that “the lake will not stabilize at this level,” but “may continue to reduce in size until it is dried up.” Moreover, unlike DWP, plaintiffs believe that the lake's gradual recession indirectly causes a host of adverse environmental impacts. Many of these alleged impacts are related to an increase in the lake's salinity, caused by the decrease in its water volume.
As noted above, Mono Lake has no outlets. The lake loses water only by evaporation and seepage. Natural salts do not evaporate with water, but are left behind. Prior to commencement of the DWP diversions, this naturally rising salinity was balanced by a constant and substantial supply of fresh water from the tributaries. Now, however, DWP diverts most of the fresh water inflow. The resultant imbalance between inflow and outflow not only diminishes the lake's size, but also drastically increases its salinity.
Plaintiffs predict that the lake's steadily increasing salinity, if unchecked, will wreck havoc throughout the local food chain. They contend that the lake's algae, and the brine shrimp and brine flies that feed on it, cannot survive the projected salinity increase. To support this assertion, plaintiffs point to a 50 percent reduction in the shrimp hatch for the spring of 1980 and a startling 95 percent reduction for the spring of 1981. These reductions affirm experimental evidence indicating that brine shrimp populations diminish as the salinity of the water surrounding them increases. (See Task Force Report at pp. 20–21.) DWP admits these substantial reductions, but blames them on factors other than salinity.
DWP's diversions also present several threats to the millions of local and migratory birds using the lake. First, since many species of birds feed on the lake's brine shrimp, any reduction in shrimp population allegedly caused by rising salinity endangers a major avian food source. The Task Force Report considered it “unlikely that any of Mono Lake's major bird species ․ will persist at the lake if populations of invertebrates disappear.” (Task Force Report at p. 20.) Second, the increasing salinity makes it more difficult for the birds to maintain osmotic equilibrium with their environment.10
The California gull is especially endangered, both by the increase in salinity and by loss of nesting sites. Ninety-five percent of this state's gull population and 25 percent of the total species population nests at the lake. (Take Force Report at p. 21.) Most of the gulls nest on islands in the lake. As the lake recedes, land between the shore and some of the islands has been exposed, offering such predators as the coyote easy access to the gull nests and chicks. In 1979, coyotes reached Negrit Island, once the most popular nesting site, and the number of gull nests at the lake declined sharply. In 1981, 95 percent of the hatched chicks did not survive to maturity. Plaintiffs blame this decline and alarming mortality rate on the predator access created by the land bridges; DWP suggests numerous other causes, such as increased ambient temperatures and human activities, and claims that the joining of some islands with the mainland is offset by the emergence of new islands due to the lake's recession.
Plaintiffs allege that DWP's diversions adversely affect the human species and its activities as well. First, as the lake recedes, it has exposed more than 18,000 acres of lake bed composed of very fine silt which, once dry, easily becomes airborne in winds. This silt contains a high concentration of alkali and other minerals that irritate the mucous membranes and respiratory systems of humans and other animals. (See Task Force Report at p. 22.) While the precise extent of this threat to the public health has yet to be determined, such threat as exists can be expected to increase with the exposure of additional lake bed. DWP, however, claims that its diversions neither affect the air quality in Mono Basin nor present a hazard to human health.
Furthermore, the lake's recession obviously diminishes its value as an economic, recreational, and scenic resource. Of course, there will be less lake to use and enjoy. The declining shrimp hatch depresses a local shrimping industry. The rings of dry lake bed are difficult to traverse on foot, and thus impair human access to the lake, and reduce the lake's substantial scenic value. Mono Lake has long been treasured as a unique scenic, recreational and scientific resource (see, e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 462–463, 52 P.2d 585; Task Force Report at pp. 22–24), but continued diversions threaten to turn it into a desert wasteland like the dry bed of Owens Lake.
To abate this destruction, plaintiffs filed suit for injunctive and declaratory relief in the Superior Court for Mono County on May 21, 1979.11 DWP moved to change venue. When the court granted the motion and transferred the case to Alpine County, DWP sought an extraordinary writ to bar this transfer. The writ was denied, and the Superior Court for Alpine County set a tentative trial date for March of 1980.
In January of that year, DWP cross-complained against 117 individuals and entities claiming water rights in the Mono Basin. On February 20, 1980, one cross-defendant, the United States, removed the case to the District Court for the Eastern District of California. On DWP's motion, the district court stayed its proceedings under the federal abstention doctrine 12 to allow resolution by California courts of two important issues of California law: “1. What is the interrelationship of the public trust doctrine and the California water rights system, in the context of the right of the Los Angeles Department of Water and Power (‘Department’) to divert water from Mono Lake pursuant to permits and licenses issued under the California water rights system? In other words, is the public trust doctrine in this context subsumed in the California water rights system, or does it function independently of that system? Stated differently, can the plaintiffs challenge the Department's permits and licenses by arguing that those permits and licenses are limited by the public trust doctrine, or must the plaintiffs challenge the permits and licenses by arguing that the water diversions and uses authorized thereunder are not ‘reasonable or beneficial’ as required under the California water rights system? [¶] 2. Do the exhaustion principles applied in the water rights context apply to plaintiffs' action pending in the United States District Court for the Eastern District of California?” 13
In response to this order, plaintiffs filed a new complaint for declaratory relief in the Alpine County Superior Court.14 On November 9, 1981, that court entered summary judgment against plaintiffs. Its notice of intended ruling stated that “[t]he California water rights system is a comprehensive and exclusive system for determining the legality of the diversions of the City of Los Angeles in the Mono Basin ․ The Public Trust Doctrine does not function independently of that system. This Court concludes that as regards the right of the City of Los Angeles to divert waters in the Mono Basin that the Public Trust Doctrine is subsumed in the water rights system of the state.” With respect to exhaustion of administrative remedies, the superior court concluded that plaintiffs would be required to exhaust their remedy before the Water Board either under a challenge based on an independent public trust claim or one based on asserted unreasonable or nonbeneficial use of appropriated water.
Plaintiffs filed a petition for mandate directly with this court to review the summary judgment of the Alpine County Superior Court. We issued an alternative writ and set the case for argument.
2. The Public Trust Doctrine in California.
“By the law of nature these things are common to mankind—the air, running water, the sea and consequently the shores of the sea.” (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns “all of its navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ” (Colberg, Inc. v. State of California ex rel. Dept. Pub. Works (1967) 67 Cal.2d 408, 416, 62 Cal.Rptr. 401, 432 P.2d 3.) 15 The State of California acquired title as trustee to such lands and waterways upon its admission to the union (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521, 162 Cal.Rptr. 327, 606 P.2d 362 and cases there cited); from the earliest days (see Eldridge v. Cowell (1854) 4 Cal. 80, 87) its judicial decisions have recognized and enforced the trust obligation.16
Three aspects of the public trust doctrine require consideration in this opinion: the purpose of the trust; the scope of the trust, particularly as it applies to the nonnavigable tributaries of a navigable lake; and the powers and duties of the state as trustee of the public trust. We discuss these questions in the order listed.
(a) The purpose of the public trust.
The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, “[p]ublic trust easements [were] traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes.” (P. 259, 98 Cal.Rptr. 790, 491 P.2d 374.) We went on, however, to hold that the traditional triad of uses—navigation, commerce and fishing—did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that “[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. [Citation.] There is a growing public recognition that one of the most important public uses of the tidelands—a use encompassed within the tidelands trust—is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” (Pp. 259–260, 98 Cal.Rptr. 790, 491 P.2d 374.)
Mono Lake is a navigable waterway. (City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 466, 52 P.2d 585.) It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavor probably qualifies the lake as a “fishery” under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological—the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, it is clear that protection of these values is among the purposes of the public trust.
(b) The scope of the public trust.
Early English decisions generally assumed the public trust was limited to tidal waters and the lands exposed and covered by the daily tides (see Stevens, op. cit. supra, 14 U.C.Davis L.Rev. 195, 201 and authorities there cited); many American decisions, including the leading California cases, also concern tidelands. (See, e.g., City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362; Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374; People v. California Fish Co. (1913) 166 Cal. 576, 138 P. 79.) It is, however, well settled in the United States generally and in California that the public trust is not limited by the reach of the tides, but encompasses all navigable lakes and streams. (See Illinois Central Railroad Co. v. Illinois (1892) 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (Lake Michigan); State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 172 Cal.Rptr. 696, 625 P.2d 239 (Clear Lake ); State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 172 Cal.Rptr. 713, 625 P.2d 256 (Lake Tahoe); People v. Gold Run D. & M. Co. (1884) 66 Cal. 138, 4 P. 1152 (Sacramento River); Hitchings v. Del Rio Woods Recreation & Park Dist. (1976) 55 Cal.App.3d 560, 127 Cal.Rptr. 830 (Russian River ).) 17
Mono Lake is, as we have said, a navigable waterway. The beds, shores and waters of the lake are without question protected by the public trust. The streams diverted by DWP, however, are not themselves navigable. Accordingly, we must address in this case a question not discussed in any recent public trust case—whether the public trust limits conduct affecting nonnavigable tributaries to navigable waterways.
This question was considered in two venerable California decisions. The first, People v. Gold Run D. & M. Co. (1884) 66 Cal. 138, 4 P. 1152, is one of the epochal decisions of California history, a signpost which marked the transition from a mining economy to one predominately commercial and agricultural. The Gold Run Ditch and Mining Company and other mining operators used huge water cannon to wash gold-bearing gravel from hillsides; in the process they dumped 600,000 cubic yards of sand and gravel annually into the north fork of the American River. The debris, washed downstream, raised the beds of the American and Sacramento Rivers, impairing navigation, polluting the waters, and creating the danger that in time of flood the rivers would turn from their channels and inundate nearby lands.
Although recognizing that its decision might destroy the remains of the state's gold mining industry, the court affirmed an injunction barring the dumping. The opinion stressed the harm to the navigability of the Sacramento River, “a great public highway, in which the people of the State have paramount and controlling rights.” (P. 146, 4 P. 1152.) Defendant's dumping, the court said, was “an unauthorized invasion of the rights of the public to its navigation.” (P. 147, 4 P. 1152.) Rejecting the argument that dumping was sanctioned by custom and legislative acquiescence, the opinion asserted that “the rights of the people in the navigable rivers of the State are paramount and controlling. The State holds the absolute right to all navigable waters and the soils under them ․ The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it ․” (Pp. 151–152, 4 P. 1152.)
In the second decision, People v. Russ (1901) 132 Cal. 102, 64 P. 111, the defendant erected dams on sloughs which adjoined a navigable river. Finding the sloughs nonnavigable, the trial court gave judgment for defendant. We reversed, directing the trial court to make a finding as to the effect of the dams on the navigability of the river. “Directly diverting waters in material quantities from a navigable stream may be enjoined as a public nuisance. Neither may the waters of a navigable stream be diverted in substantial quantities by drawing from its tributaries ․ If the dams upon these sloughs result in the obstruction of Salt River as a navigable stream, they constitute a public nuisance.” (P. 106, 64 P. 111.)
DWP points out that the Gold Run decision did not involve diversion of water, and that in Russ there had been no finding of impairment to navigation. But the principles recognized by those decisions apply fully to a case in which diversions from a nonnavigable tributary impair the public trust in a downstream river or lake. “If the public trust doctrine applies to constrain fills which destroy navigation and other public trust uses in navigable waters, it should equally apply to constrain the extraction of water that destroys navigation and other public interests. Both actions result in the same damage to the public interest.” (Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C.Davis L.Rev. 233, 257–258; see Dunning, The Significance of California's Public Trust Easement for California Water Rights Law (1980) 14 U.C.Davis L.Rev. 357, 359–360.)
We conclude that the public trust doctrine, as recognized and developed in California decisions, protects navigable waters 18 from harm caused by diversion of nonnavigable tributaries.19
(c) Duties and powers of the state as trustee.
In the following review of the authority and obligations of the state as administrator of the public trust, the dominant theme is the state's sovereign power and duty to exercise continued supervision over the trust. One consequence, of importance to this and many other cases, is that parties acquiring rights in trust property generally hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
As we noted recently in City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362, the decision of the United States Supreme Court in Illinois Central Railroad Company v. Illinois, supra, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018, “remains the primary authority even today, almost nine decades after it was decided.” (26 Cal.3d 521, 162 Cal.Rptr. 327, 606 P.2d 362.) The Illinois Legislature in 1886 had granted the railroad in fee simple 1,000 acres of submerged lands, virtually the entire Chicago waterfront. Four years later it sought to revoke that grant. The Supreme Court upheld the revocatory legislation. Its opinion explained that lands under navigable waters conveyed to private parties for wharves, docks, and other structures in furtherance of trust purposes could be granted free of the trust because the conveyance is consistent with the purpose of the trust. But the legislature, it held, did not have the power to convey the entire city waterfront free of trust, thus barring all future legislatures from protecting the public interest. The opinion declares that: “A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, ․ than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waterways, they cannot be placed entirely beyond the direction and control of the State.” (146 U.S. pp. 453–454, 13 S.Ct. p. 118.)
Turning to the Illinois Central grant, the court stated that: “Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time. Undoubtedly there may be expenses incurred in improvements made under such a grant which the State ought to pay; but, be that as it may, the power to resume the trust whenever the State judges best is, we think, incontrovertible․ The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.” (Pp. 455–456, 13 S.Ct. p. 119.)
The California Supreme Court indorsed the Illinois Central principles in People v. California Fish Co. (1913) 166 Cal. 576, 138 P. 79. California Fish concerned title to about 80,000 acres of tidelands conveyed by state commissioners pursuant to statutory authorization. The court first set out principles to govern the interpretation of statutes conveying that property: “[S]tatutes purporting to authorize an abandonment of ․ public use will be carefully scanned to ascertain whether or not such was the legislative intention, and that intent must be clearly expressed or necessarily implied. It will not be implied if any other inference is reasonably possible. And if any interpretation of the statute is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the statute such interpretation.” (Id., at p. 597, 138 P. 79.) Applying these principles, the court held that because the statute in question and the grants pursuant thereto were not made for trust purposes, the grantees did not acquire absolute title; instead, the grantees “own the soil, subject to the easement of the public for the public uses of navigation and commerce, and to the right of the state, as administrator and controller of these public uses and the public trust therefor, to enter upon and possess the same for the preservation and advancement of the public uses and to make such changes and improvements as may be deemed advisable for those purposes.” (Id., at pp. 598–599, 138 P. 79.)
Finally, rejecting the claim of the tideland purchasers for compensation, the court stated they did not lose title, but retained it subject to the public trust. (See pp. 599–601.) While the state may not “retake the absolute title without compensation” (p. 599, 138 P. 79), it may without such payment erect improvements to further navigation and take other actions to promote the public trust.20
Boone v. Kingsbury (1928) 206 Cal. 148, 273 P. 797, presents another aspect of this matter. The Legislature authorized the Surveyor-General to lease trust lands for oil drilling. Applying the principles of Illinois Central, the court upheld that statute on the ground that the derricks would not substantially interfere with the trust. Any licenses granted by the statute, moreover, remained subject to the trust: “The state may at any time remove [the] structures ․, even though they have been erected with its license or consent, if it subsequently determines them to be purprestures or finds that they substantially interfere with navigation or commerce.” (Pp. 192–193, 273 P. 797.) 21
Finally, in our recent decision in City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362, we considered whether deeds executed by the Board of Tidelands Commissioners pursuant to an 1870 act conferred title free of the trust. Applying the principles of earlier decisions, we held that the grantees' title was subject to the trust, both because the Legislature had not made clear its intention to authorize a conveyance free of the trust and because the 1870 act and the conveyances under it were not intended to further trust purposes.
Once again we rejected the claim that establishment of the public trust constituted a taking of property for which compensation was required: “We do not divest anyone of title to property; the consequence of our decision will be only that some landowners whose predecessors in interest acquired property under the 1870 act will, like the grantees in California Fish, hold it subject to the public trust.” (P. 532, 162 Cal.Rptr. 327, 606 P.2d 362.) 22
In summary, the foregoing cases amply demonstrate the continuing power of the state as administrator of the public trust, a power which extends to the revocation of previously granted rights or to the enforcement of the trust against lands long thought free of the trust (see City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362). Except for those rare instances in which a grantee may acquire a right to use former trust property free of trust restrictions, the grantee holds subject to the trust, and while he may assert a vested right to the servient estate (the right of use subject to the trust) and to any improvements he erects, he can claim no vested right to bar recognition of the trust or state action to carry out its purposes.
Since the public trust doctrine does not prevent the state from choosing between trust uses (Colberg, Inc. v. State of California, supra, 67 Cal.2d 408, 419, 62 Cal.Rptr. 401, 432 P.2d 3; County of Orange v. Heim (1973) 30 Cal.App.3d 694, 707, 106 Cal.Rptr. 825), the Attorney General of California, seeking to maximize state power under the trust, argues for a broad concept of trust uses. In his view, “trust uses” encompass all public uses, so that in practical effect the doctrine would impose no restrictions on the state's ability to allocate trust property. We know of no authority which supports this view of the public trust, except perhaps the dissenting opinion in Illinois Central R. Co. v. Illinois, supra, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018. Most decisions and commentators assume that “trust uses” relate to uses and activities in the vicinity of the lake, stream, or tidal reach at issue (see, e.g., City of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 468–469; State of Cal. ex rel. State Lands Com. v. County of Orange, supra, 134 Cal.App.3d 20, 184 Cal.Rptr. 423; Sax, op. cit. supra, 68 Mich.L.Rev. 471, 542.) The tideland cases make this point clear; after City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 162 Cal.Rptr. 327, 606 P.2d 362, no one could contend that the state could grant tidelands free of the trust merely because the grant served some public purpose, such as increasing tax revenues, or because the grantee might put the property to a commercial use.
Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
3. The California Water Rights System.
“It is laid down by our law writers, that the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use.” (Eddy v. Simpson (1853) 3 Cal. 249, 252.) Hence, the cases do not speak of the ownership of water, but only of the right to its use. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 554–555, 81 P.2d 533; see generally Hutchins, The Cal.Law of Water Rights (1956) pp. 36–38; 1 Rogers & Nichols, Water for Cal. (1967) p. 191.) Accordingly, Water Code section 102 provides that “[a]ll water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law.”
Our recent decision in People v. Shirokow (1980) 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, described the early history of the appropriative water rights system in California. We explained that “California operates under the so-called dual system of water rights which recognizes both the appropriation and the riparian doctrines. (Hutchins, The California Law of Water Rights, supra, at pp. 40, 55–67.) The riparian doctrine confers upon the owner of land contiguous to a watercourse the right to the reasonable and beneficial use of water on his land. The appropriation doctrine contemplates the diversion of water and applies to ‘any taking of water for other than riparian or overlying uses.’ (City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925 [207 P.2d 17], and cases there cited.) ․
“․
“Common law appropriation originated in the gold rush days when miners diverted water necessary to work their placer mining claims. The miners adopted among themselves the priority rule of ‘first in time, first in right,’ and California courts looked to principles of equity and of real property law to adjudicate conflicting claims. [Citations.] Thus it was initially the law in this state that a person could appropriate water merely by diverting it and putting it to use.
“The first appropriation statute was enacted in 1872 and provided for initiation of the appropriative right by the posting and recordation of notice. (Civ.Code, §§ 1410–1422.) The nonstatutory method retained its vitality and appropriative rights were acquired by following either procedure. [Citation.]
“Both methods were superseded by the 1913 enactment of the Water Commission Act, which created a Water Commission and provided a procedure for the appropriation of water for useful and beneficial purposes. The main purpose of the act was ‘to provide an orderly method for the appropriation of [unappropriated] waters.’ (Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 95 [280 P.2d 1]; Bloss v. Rahilly (1940) 16 Cal.2d 70, 75 [104 P.2d 1049].) By amendment in 1923, the statutory procedure became the exclusive means of acquiring appropriative rights. (§ 1225, Stats.1923, ch. 87.) The provisions of the Water Commission Act, as amended from time to time, have been codified in Water Code, divisions 1 and 2. (Stats.1943, ch. 368.)” (Pp. 307–308, 162 Cal.Rptr. 30, 605 P.2d 859, fns. omitted.)
The role of the Water Board under the 1913 act, as Shirokow indicated, was a very limited one. The only water subject to appropriation under the act was water which was not then being applied to useful and beneficial purposes, and was not otherwise appropriated. (See Wat.Code, § 1201, based upon Stats.1913, ch. 586, p. 1017, § 11.) Thus, appropriative rights acquired under the act were inferior to pre-existing rights such as riparian rights, pueblo rights, and prior prescriptive appropriations. (See City of San Diego v. Cuyamaca Water Co. (1913) 209 Cal. 105, 287 P. 475.)
Judicial decisions confirmed this limited role. According to the courts, the function of the Water Board was restricted to determining if unappropriated water was available; if it was, and no competing appropriator submitted a claim, the grant of an appropriation was a ministerial act. (Tulare Water Co. v. State Water Com. (1921) 187 Cal. 533, 202 P. 874.)
In 1926, however, a decision of this court led to a constitutional amendment which radically altered water law in California and led to an expansion of the powers of the board. In Herminghaus v. South California Edison Co. (1926) 200 Cal. 81, 252 P. 607, we held not only that riparian rights took priority over appropriations authorized by the Water Board, a point which had always been clear, but that as between the riparian and the appropriator, the former's use of water was not limited by the doctrine of reasonable use. (Pp. 100–101, 252 P. 607.) That decision led to a constitutional amendment which abolished the right of a riparian to devote water to unreasonable uses, and established the doctrine of reasonable use as an overriding feature of California water law. (See Fullerton v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 596, 153 Cal.Rptr. 518, and cases there cited.)
Article X, section 2 (enacted in 1928 as art. XIV, § 3) reads in pertinent part as follows: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water․ This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.”
This amendment does more than merely overturn Herminghaus—it establishes state water policy. All uses of water, including public trust uses, must now conform to the standard of reasonable use. (See Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 367, 40 P.2d 486; People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 749–750, 126 Cal.Rptr. 851.) 23
The 1928 amendment did not declare whether the in-stream uses protected by the public trust could be considered reasonable and beneficial uses. In a 1936 case involving Mono Lake, however, the court squarely rejected DWP's argument that use of stream water to maintain the lake's scenic and recreational values violated the constitutional provision barring unreasonable uses. (County of Los Angeles v. Aitken, supra, 10 Cal.App.2d 460, 52 P.2d 585.) The point is now settled by statute, Water Code section 1243 providing that “[t]he use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water.” (See also Cal. Trout, Inc. v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 816, 821, 153 Cal.Rptr. 672.)
The 1928 amendment itself did not expand the authority of the Water Board. The board remained, under controlling judicial decisions, a ministerial body with the limited task of determining priorities between claimants seeking to appropriate unclaimed water. More recent statutory and judicial developments, however, have greatly enhanced the power of the Water Board to oversee the reasonable use of water and, in the process, made clear its authority to weigh and protect public trust values.
In 1955, the Legislature declared that in acting on appropriative applications, “the board shall consider the relative benefit to be derived from (1) all beneficial uses of the water concerned including, but not limited to, use for domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife, recreational, mining and power purposes ․ The board may subject such appropriations to such terms and conditions as in its judgment will best develop, conserve, and utilize in the public interest, the water sought to be appropriated.” (Wat.Code, § 1257.) In 1959 it stated that “[t]he use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water.” (Wat.Code, § 1243.) Finally in 1969 the Legislature instructed that “[i]n determining the amount of water available for appropriation, the board shall take into account, whenever it is in the public interest, the amounts of water needed to remain in the source for protection of beneficial uses.” (Wat.Code, § 1243.5.)
Judicial decisions have also expanded the powers of the Water Board. In Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 280 P.2d 1, we rejected the holding of Tulare Water Co. v. State Water Com., supra, 187 Cal. 533, 202 P. 874, and held that the decision of the board to grant an application to appropriate water was a quasi-judicial decision, not a ministerial act. In People v. Shirokow, supra, 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, we held that the board could enjoin diversion of water by the owner of a prescriptive right who refused to comply with water conservation programs, even though his right was not based on a board license. Our decision rested on the legislative intent “to vest in the board expansive powers to safeguard the scarce water resources of the state.” (P. 309, 162 Cal.Rptr. 30, 605 P.2d 859; see also Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., supra, 26 Cal.3d 183, 194–195, 161 Cal.Rptr. 466, 605 P.2d 1; In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 158 Cal.Rptr. 350, 599 P.2d 656.) Although the courts have refused to allow the board to appropriate water for in-stream uses, even those decisions have declared that the board has the power and duty to protect such uses by withholding water from appropriation. (Fullerton v. State Water Resources Control Bd., supra, 90 Cal.App.3d 590, 603–604, 153 Cal.Rptr. 518; Cal. Trout, Inc. v. State Water Resources Control Bd., supra, 90 Cal.App.3d 816, 821, 153 Cal.Rptr. 672.)
Thus, the function of the Water Board has steadily evolved from the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters. This change necessarily affects the board's responsibility with respect to the public trust. The board of limited powers of 1913 had neither the power nor duty to consider interests protected by the public trust; the present board, in undertaking planning and allocation of water resources, is required by statute to take those interests into account.
4. The relationship between the Public Trust Doctrine and the California Water Rights System.
As we have seen, the public trust doctrine and the appropriative water rights system administered by the Water Board developed independently of each other. Each developed comprehensive rules and principles which, if applied to the full extent of their scope, would occupy the field of allocation of stream waters to the exclusion of any competing system of legal thought. Plaintiffs, for example, argues that the public trust is antecedent to and thus limits all appropriative water rights, an argument which implies that most appropriative water rights in California were acquired and are presently being used unlawfully.24 Defendant DWP, on the other hand, argues that the public trust doctrine as to stream waters has been “subsumed” into the appropriative water rights system and, absorbed by that body of law, quietly disappeared; according to DWP, the recipient of a board license enjoys a vested right in perpetuity to take water without concern for the consequences to the trust.
We are unable to accept either position. In our opinion, both the public trust doctrine and the water rights system embody important precepts which make the law more responsive to the diverse needs and interests involved in the planning and allocation of water resources. To embrace one system of thought and reject the other would lead to an unbalanced structure, one which would either decry as a breach of trust appropriations essential to the economic development of this state, or deny any duty to protect or even consider the values promoted by the public trust. Therefore, seeking an accommodation which will make use of the pertinent principles of both the public trust doctrine and the appropriative water rights system, and drawing upon the history of the public trust and the water rights system, the body of judicial precedent, and the views of expert commentators, we reach the following conclusions:
a. The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. This principle, fundamental to the concept of the public trust, applies to rights in flowing waters as well as to rights in tidelands and lakeshores; it prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.25
b. As a matter of current and historical necessity, the Legislature, acting directly or through an authorized agency such as the Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water in a distant part of the state, even though this taking does not promote, and may unavoidably harm, the trust uses at the source stream. The population and economy of this state depend upon the appropriation of vast quantities of water for uses unrelated to in-stream trust values.26 California's Constitution (see art. X, § 2), its statutes (see Wat.Code, §§ 100, 104), decisions (see, e.g., Waterford I. Dist. v. Turlock I. Dist. (1920) 50 Cal.App. 213, 220, 194 P. 757), and commentators (e.g., Hutchins, The Cal.Law of Water Rights, op. cit. supra, p. 11) all emphasize the need to make efficient use of California's limited water resources: all recognize, at least implicitly, that efficient use requires diverting water from in-stream uses. Now that the economy and population centers of this state have developed in reliance upon appropriated water, it would be disingenuous to hold that such appropriations are and have always been improper to the extent that they harm public trust uses, and can be justified only upon theories of reliance or estoppel.
c. The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.27 Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, op. cit. supra, 14 U.C. Davis L.Rev. 233, 256–257; Robie, Some Reflections on Environmental Considerations in Water Rights Administration (1972), 2 Ecology L.Q. 695, 710–711; Comment, op. cit. supra, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Con. Commission (N.D.1976) 247 N.W.2d 457, 462–463), and to preserve, so far as consistent with the public interest, the uses protected by the trust.
Once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs.
The state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust.28 The case for reconsidering a particular decision, however, is even stronger when that decision failed to weigh and consider public trust uses. In the case before us, the salient fact is that no responsible body has ever determined the impact of diverting the entire flow of the Mono Lake tributaries into the Los Angeles Acqueduct. This is not a case in which the Legislature, the Water Board, or any judicial body has determined that the needs of Los Angeles outweigh the needs of the Mono Basin, that the benefit gained is worth the price. Neither has any responsible body determined whether some lesser taking would better balance the diverse interests.29 Instead, DWP acquired rights to the entire flow in 1940 from a water board which believed it lacked both the power and the duty to protect the Mono Lake environment, and continues to exercise those rights in apparent disregard for the resulting damage to the scenery, ecology, and human uses of Mono Lake.
It is clear that some responsible body ought to reconsider the allocation of the waters of the Mono Basin.30 No vested rights bar such reconsideration. We recognize the substantial concerns voiced by Los Angeles—the city's need for water, its reliance upon the 1940 board decision, the cost both in terms of money and environmental impact of obtaining water elsewhere. Such concerns must enter into any allocation decision. We hold only that they do not preclude a reconsideration and reallocation which also takes into account the impact of water diversion on the Mono Lake environment.
5. Exhaustion of Administrative Remedies.
On motion for summary judgment, the trial court held that plaintiffs must exhaust their administrative remedies before the Water Board prior to filing suit in superior court. Plaintiffs, supported on this point by DWP, contend that the courts and the board have concurrent jurisdiction over the merits of their claim, and thus that they had no duty to exhaust any administrative remedy before filing suit.
The first question we must face is whether plaintiffs had any Water Board remedy to exhaust. There appear to be two possible grounds upon which plaintiffs could initiate a board proceeding. First, they could claim that DWP was making an unreasonable use of water, in violation either of controlling constitutional and statutory provisions or of the terms of DWP's license. (See Cal.Admin.Code, tit. 23, § 764.10.) Plaintiffs, however, expressly disclaim any intent to charge unreasonable use, and announced instead their intent to found their action solely on the public trust doctrine, so this remedy is unavailable.
The only alternative method of bringing the issue before the board is a proceeding invoking Water Code section 2501, which provides that “[t]he board may determine, in the proceedings provided for in this chapter, all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right.” We recognize certain difficulties in applying this remedy to the present case. It is unclear whether a claim based on the public trust is a “water right” in the technical sense of that term. (See Dunning, op. cit. supra, 14 U.C. Davis L.Rev. 357, 383; cf. Fullerton v. State Water Resources Control Bd., supra, 90 Cal.App.3d 590, 604, 153 Cal.Rptr. 518.) Also, the relevant chapter of the Water Code refers to petitions filed by “claimants to water” (see, e.g., Wat.Code, § 2525); it is uncertain whether a person asserting the interest of the public trust would be considered a “claimant.”
In recent decisions, however, we have discerned a legislative intent to grant the Water Board a “broad,” “open-ended,” “expansive” authority to undertake comprehensive planning and allocation of water resources. (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348–349, 350, fn. 5, 158 Cal.Rptr. 350, 599 P.2d 656; People v. Shirokow, supra, 26 Cal.3d 301, 309, 162 Cal.Rptr. 30, 605 P.2d 859.) Both cases emphasized the board's power to adjudicate all competing claims, even riparian claims (Long Beach ) and prescriptive claims (Shirokow ) which do not fall within the appropriative licensing system. Having construed section 2501 to give the board broad substantive powers—powers adequate to carry out the legislative mandate of comprehensive protection of water resources—it would be inconsistent to read that statute so narrowly that the board lacked jurisdiction to employ those powers.
We therefore construe Water Code section 2501 to permit a person claiming that a use of water is harmful to interests protected by the public trust to seek a board determination of the allocation of water in a stream system, a determination which may include reconsideration of rights previously granted in that system. Under this interpretation of section 2501, plaintiffs have a remedy before the Water Board.
Must plaintiffs exhaust this administrative remedy before filing suit in superior court? A long line of decisions indicate that remedies before the Water Board are not exclusive, but that the courts have concurrent original jurisdiction.
As we observed earlier in this opinion (see ante, pp. 362–363 of 189 Cal.Rptr., pp. 725–726 of 658 P.2d), for much of its history the Water Board was an agency of limited scope and power. Many water right disputes, such as those involving riparian rights, pueblo rights, and prescriptive rights, did not fall within the jurisdiction of the board. But even in cases which arguably came within the board's limited jurisdiction, the parties often filed directly in the superior court, which assumed jurisdiction and decided the case. (See, e.g., Allen v. California Water & Tel. Co. (1946) 29 Cal.2d 466, 176 P.2d 8.) All public trust cases cited in this opinion were filed directly in the courts. Thus, a 1967 treatise on California water law could conclude that “[g]enerally, the superior courts of California have original jurisdiction over water rights controversies ․” but in some cases must share concurrent jurisdiction with administrative bodies. (1 Rogers & Nichols, op. cit. supra, at p. 528.)
Although prior cases had assumed jurisdictional concurrency, we first discussed that question in our decision in Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1977) 20 Cal.3d 327, 142 Cal.Rptr. 904, 572 P.2d 1128 (EDF I ), and our later decision in the same case on remand from the United States Supreme Court, Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist., supra, 26 Cal.3d 183, 161 Cal.Rptr. 466, 605 P.2d 1 (EDF II ). Plaintiff in that case sued to enjoin performance of a contract for diversion of water from the American River on the ground that under the doctrine of reasonable use the utility district should instead use reclaimed waste water. Intervenor County of Sacramento claimed the diversion was an unreasonable use because the diversion point was too far upstream, and would deprive downstream users of the water.
In EDF I we held that the Legislature had intended to vest regulation of waste water reclamation in the Water Board because of the need for expert evaluation of the health and feasibility problems involved. We therefore concluded that the plaintiffs' superior court action to compel waste water reclamation was barred by failure to exhaust administrative remedies. (20 Cal.3d 327, 343–344, 142 Cal.Rptr. 904, 572 P.2d 1128.)
EDF I further held the intervener's claim concerning the diversion point was barred by federal preemption (p. 340), but the United States Supreme Court vacated our decision and remanded for reconsideration in light of California v. United States (1978) 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018. On remand, we found no federal preemption, and further held that intervener's claim was not defeated by failure to exhaust administrative remedies. Noting that “the courts [had] traditionally exercised jurisdiction of claims of unreasonable water use” (EDF II, 26 Cal.3d 183, 199, 161 Cal.Rptr. 466, 605 P.2d 1), we stated that “[a]part from overriding considerations such as are presented by health and safety dangers involved in the reclamation of waste water, we are satisfied that the courts have concurrent jurisdiction with ․ administrative agencies to enforce the self-executing provisions of article X, section 2.” (P. 200, 161 Cal.Rptr. 466, 605 P.2d 1.) 31
The present case involves the same considerations as those before us in the EDF cases. On the one hand, we have the board with experience and expert knowledge, not only in the intricacies of water law but in the economic and engineering problems involved in implementing water policy.32 The board, moreover, is charged with a duty of comprehensive planning, a function difficult to perform if some cases bypass board jurisdiction. On the other hand, we have an established line of authority declaring the concurrent jurisdiction of the courts, and reliance upon that authority by the plaintiffs.
We have seriously considered whether, in light of the broad powers and duties which the Legislature has conferred on the Water Board, we should overrule EDF II and declare that henceforth the board has exclusive primary jurisdiction in matters falling within its purview. We perceive, however, that the Legislature has chosen an alternative means of reconciling board expertise and judicial precedent. Instead of granting the board exclusive primary jurisdiction, it has enacted a series of statutes designed to permit state courts, and even federal courts, to make use of the experience and expert knowledge of the board.
Water Code section 2000 provides that “[i]n any suit brought in any court of competent jurisdiction in this State for determination of rights to water, the court may order a reference to the board, as referee, of any or all issues involved in the suit.” Section 2001 provides alternatively that the court “may refer the suit to the board for investigation of and report upon any or all of the physical facts involved.” Finally, recognizing that some water cases will be filed in or transferred to federal courts, section 2075 provides that “[i]n case suit is brought in a federal court for determination of the rights to water within, or partially within, this State, the board may accept a reference of such suit as master or referee for the court.”
These statutes necessarily imply that the superior court has concurrent original jurisdiction in suits to determine water rights, for a reference to the board as referee or master would rarely if ever be appropriate in a case filed originally with the board. The court, however, need not proceed in ignorance, nor need it invest the time required to acquire the skills and knowledge the board already possesses. When the case raises issues which should be considered by the board, the court may refer the case to the board. Thus the courts, through the exercise of sound discretion and the use of their reference powers, can substantially eliminate the danger that litigation will bypass the board's expert knowledge and frustrate its duty of comprehensive planning.33
6. Conclusion.
This has been a long and involved answer to the two questions posed by the federal district court. In summarizing our opinion, we will essay a shorter version of our response.
The federal court inquired first of the interrelationship between the public trust doctrine and the California water rights system, asking whether the “public trust doctrine in this context [is] subsumed in the California water rights system, or ․ function[s] independently of that system?” Our answer is “neither.” The public trust doctrine and the appropriative water rights system are parts of an integrated system of water law. The public trust doctrine serves the function in that integrated system of preserving the continuing sovereign power of the state to protect public trust uses, a power which precludes anyone from acquiring a vested right to harm the public trust, and imposes a continuing duty on the state to take such uses into account in allocating water resources.
Restating its question, the federal court asked: “[C]an the plaintiffs challenge the Department's permits and licenses by arguing that those permits and licenses are limited by the public trust doctrine, or must the plaintiffs ․ [argue] that the water diversions and uses authorized thereunder are not ‘reasonable or beneficial’ as required under the California water rights system?” We reply that plaintiffs can rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono Basin.
The federal court's second question asked whether plaintiffs must exhaust an administrative remedy before filing suit. Our response is “no.” The courts and the Water Board have concurrent jurisdiction in cases of this kind. If the nature or complexity of the issues indicate that an initial determination by the board is appropriate, the courts may refer the matter to the board.
This opinion is but one step in the eventual resolution of the Mono Lake controversy. We do not dictate any particular allocation of water. Our objective is to resolve a legal conundrum in which two competing systems of thought—the public trust doctrine and the appropriative water rights system—existed independently of each other, espousing principles which seemingly suggested opposite results. We hope by integrating these two doctrines to clear away the legal barriers which have so far prevented either the Water Board or the courts from taking a new and objective look at the water resources of the Mono Basin. The human and environmental uses of Mono Lake—uses protected by the public trust doctrine—deserve to be taken into account. Such uses should not be destroyed because the state mistakenly thought itself powerless to protect them.
Let a peremptory writ of mandate issue commanding the Superior Court of Alpine County to vacate its judgment in this action and to enter a new judgment consistent with the views stated in this opinion.34
I concur in the court's opinion. While I share Justice Richardson's reservations on the issue of concurrent jurisdiction, I doubt that the problem can be solved by making the question of exclusive board jurisdiction depend on such rather vague tests as those announced in EDF I and EDF II. If a majority of the court were inclined to reconsider the issue, I would respectfully suggest that the exclusive jurisdiction of the board should be broadened to include disputes such as the present one. This would, obviously, involve the overruling of certain precedents on which plaintiffs justifiably relied. The new rule should, therefore, not be applicable to them.
Since, however, the requisite majority interest in reconsidering the question of concurrent jurisdiction is lacking, I join the court's opinion.
I concur with parts 1 through 4 of the majority opinion and with its analysis of the relationship between the public trust doctrine and the water rights system in this state. I respectfully dissent, however, from part 5 of the opinion wherein the majority holds that the courts and the California Water Resources Board (Water Board) have concurrent jurisdiction in cases of this kind. In my view, there are several compelling reasons for holding that the Water Board has exclusive original jurisdiction over the present dispute, subject of course to judicial review of its decision.
As the majority recognizes, the matter of concurrent jurisdiction involves the related issue of exhaustion of administrative remedies. It is well settled that where an administrative remedy is provided by statute, that remedy must be pursued and exhausted before the courts will act. (Albelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292, 109 P.2d 942.) This doctrine applies to disputes regarding water appropriated pursuant to permits issued by the Water Board. (Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 106, 280 P.2d 1.) The majority concedes that plaintiffs had an administrative remedy available to them in the present case, namely, a proceeding under Water Code section 2501 “to seek a board determination of the allocation of water in a stream system,” including “reconsideration of rights previously granted in that system.” (Ante, p. 367 of 189 Cal.Rptr., p. 730 of 658 P.2d.) Nevertheless, the majority concludes that prior cases of this court, together with certain statutory provisions permitting (but not requiring) reference of water disputes to the Water Board, both excuse plaintiffs' failure to exhaust their administrative remedy and allow the courts to exercise concurrent jurisdiction in cases of this kind. I reach a contrary conclusion.
As the majority explains (ante, p. 367 of 189 Cal.Rptr., p. 730 of 658 P.2d), earlier cases which held that the court shared concurrent jurisdiction with the Water Board were decided at a time when the board “was an agency of limited scope and power,” without authority to consider many water right issues such as the application of the public trust. Indeed, the Water Board in the present case itself had assumed that it lacked jurisdiction over public trust issues; the board's 1940 decision granting appropriative permits reflects that assumption. (Ante, pp. 350–351 of 189 Cal.Rptr., pp. 713–714 of 658 P.2d.) If, as the majority now holds, the Water Board's jurisdiction extends to public trust issues, it is entirely proper to apply the exhaustion of remedies principle and insist that plaintiffs seek reconsideration from the board before litigating the matter in court.
The majority relies primarily upon Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 198–200, 161 Cal.Rptr. 466, 605 P.2d 1 (EDF II ), but our language in that case supports the view that, in cases of the kind now before us, the board has exclusive jurisdiction. In EDF II, we held that “Apart from overriding considerations,” the courts have concurrent jurisdiction with the Water Board to enforce the self-executing constitutional proscriptions against unreasonable water use and diversion. (P. 200, 161 Cal.Rptr. 466, 605 P.2d 1.) Most of the “overriding considerations” referred to in EDF II are present here.
Thus, in that case we observed that waste water reclamation disputes require consideration of such complex and “transcendent” factors as the potential danger to public health and safety and the feasibility of reclamation, factors which would require deference to “appropriate administrative agencies,” such as the Water Board, and would foreclose concurrent court jurisdiction. (P. 199, 161 Cal.Rptr. 466, 605 P.2d 1; see also Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1977) 20 Cal.3d 327, 343–344, 142 Cal.Rptr. 904, 572 P.2d 1128 (EDF I ).) We repeated our earlier observation that “private judicial litigation involves piecemeal adjudication determining only the relative rights of the parties before the court, whereas in administrative proceedings comprehensive adjudication considers the interests of other concerned persons who may not be parties to the court action.” (EDF II, 26 Cal.3d at p. 199, 161 Cal.Rptr. 466, 605 P.2d 1; see In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 359–360, 158 Cal.Rptr. 350, 599 P.2d 656.)
The same “overriding considerations” catalogued by us in EDF II seem applicable here. Although this case does not involve waste water reclamation, nevertheless the balancing of public trust values affecting Mono Lake and the water rights of a large metropolitan community presents similarly complex, overriding and “transcendent” issues which demand initial consideration by the Water Board. Only the board, which had issued the very licenses and permits now under challenge, possesses the experience and expertise needed to balance all of the various competing interests in reaching a fair and reasonable resolution of this vastly important litigation.
As we noted in EDF I, “The scope and technical complexity of issues concerning water resource management are unequalled by virtually any other type of activity presented to the courts.” (20 Cal.3d at p. 344, 142 Cal.Rptr. 904, 572 P.2d 1128.) As the majority opinion herein amply demonstrates, similar complexities are presented here. The majority concedes that (1) “The present case involves the same considerations as those before us in the EDF cases,” (2) the Water Board possesses the expertise to resolve “the intricacies of water law” and “the economic and engineering problems involved in implementing water policy,” and (3) the board “is charged with a duty of comprehensive planning, a function difficult to perform if some cases bypass board jurisdiction.” (Ante, p. 368 of 189 Cal.Rptr., p. 731 of 658 P.2d.) Thus, the case for exclusive board jurisdiction seems to me truly overwhelming.
The majority's suggestion that various statutory provisions contemplate the exercise of concurrent jurisdiction in cases of this kind is unconvincing. These provisions (Wat.Code, §§ 2000, 2001, 2075) merely authorize the courts in water rights cases to refer the issues to the Water Board for its determination as a referee. Obviously, these provisions do not purport to excuse a prior failure to exhaust available administrative remedies before the Water Board. Moreover, these provisions do not attempt to resolve the question, presented in the EDF cases, whether “overriding considerations” dictate an exception to the general rule of concurrent jurisdiction.
As we said in EDF I, “When ․ the statutory pattern regulating a subject matter integrates the administrative agency into the regulatory scheme and the subject of the litigation demands a high level of expertise within the agency's special competence, we are satisfied that the litigation in the first instance must be addressed to the agency. [Citation.]” (20 Cal.3d at p. 344, 142 Cal.Rptr. 904, 572 P.2d 1128.) That principle seems fully applicable here.
I would affirm the judgment.
FOOTNOTES
1. For convenience we shall refer to the state agency with authority to grant appropriative rights as the Water Board or the board, without regard to the various names which this agency has borne since it was first created in 1913.
2. For discussion of the effect of diversions on the ecology of Mono Lake, see Young, The Troubled Waters of Mono Lake (Oct. 1981) National Geographic, at page 504; Jehl, Jr., Mono Lake: A Vital Way Station for the Wilson's Phalarope (Oct. 1981) National Geographic, at page 520; Hoff, The Legal Battle Over Mono Lake (Jan. 1982) Cal.Law., at page 28; (Cal. Dept. Water Resources, Rep. of the Interagency Task Force on Mono Lake (Dec. 1969) (hereafter Task Force Report)).
3. Ironically, among the decisions reviewed in preparing this opinion was one in which Los Angeles was held liable for permitting water to flow into Owens Lake, damaging mineral extraction facilities constructed in reliance on the city taking the entire flow of the Owens River. (Natural Soda Prod. Co. v. City of Los Angeles (1943) 23 Cal.2d 193, 143 P.2d 12.)
4. Between 1920 and 1934, the city purchased lands riparian to creeks feeding Mono Lake and riparian rights incident to such lands. In 1934, the city brought an eminent domain proceeding for condemnation of the rights of Mono Lake landowners. (City of Los Angeles v. Aitken, (1935) 10 Cal.App.2d 460, 52 P.2d 585.)
5. In theory, the board could have rejected the city's application on the ground that the waters of the streams were already being put to beneficial use or that the DWP proposed an unreasonable use of water in violation of article X, section 2 of the California Constitution. It does not appear that the board considered either proposition.
6. DWP calls our attention to a 1940 decision of the Water Board involving Rock Creek, a tributary of the Owens River, in which the board stated that “the Water Commission Act requires it to protect streams in recreational areas by guarding against depletion below some minimum amount consonant with the general recreational conditions and the character of the stream.” (Div. Wat. Resources Dec. 3850 (Apr. 11, 1940), at p. 24.) The decision concluded that the board had insufficient information to decide what conditions, if any, to place upon DWP's application to divert water from Rock Creek for hydroelectric generation.We do not know why the board was seemingly more willing to limit diversions to protect recreational values for Rock Creek than for the creeks flowing into Mono Lake. (Neither do we know the eventual outcome of the Rock Creek application.) The language of the board's opinions suggests that the crucial distinction was that the application for the Mono Lake streams was for domestic use, the highest use under the Water Code, while the Rock Creek application was for power generation.
7. Plaintiffs submitted an interrogatory to the present Water Board, inquiring: “Do you contend that the predecessor of the Water Board, at the time it issued the DWP appropriation permit, held the view that, notwithstanding the protests based on environmental concerns, it had no alternative but to issue DWP the permits DWP sought to export water from the Mono Basin?”The Water Board replied: “The [Water] Board believes that its predecessor did hold the view that, notwithstanding protests based upon loss of land values resulting from diminished recreational opportunity, if unappropriated water is available, it had no alternative but to issue DWP the permits DWP sought in order to export water from the Mono Basin ․”
8. In 1974 the Water Board confirmed that DWP had perfected its appropriative right by the actual taking and beneficial use of water, and issued two permanent licenses (board licenses Nos. 10191 and 10192) authorizing DWP to divert up to 167,000 acre-feet annually (far more than the average annual flow) from Lee Vining, Walker, Parker and Rush Creeks. The Water Board viewed this action as a ministerial action, based on the 1940 decision, and held no hearings on the matter.
9. In 1979 the California Department of Water Resources and the United States Department of the Interior undertook a joint study of the Mono Basin. The study recommends that the level of Mono Lake be stabilized at 6,388 feet. To achieve this end it recommended that exports of water from the Mono Basin be reduced from the present average of 100,000 acre-feet annually to a limit of 15,000 acre-feet. (Task Force Report at pp. 36–55.) Legislation was introduced to implement this recommendation, but was not enacted.
10. In the face of rising salinity, birds can maintain such equilibrium only by increasing either their secretion of salts or their intake of fresh water. The former option is foreclosed, however, because Mono Lake is already so salty that the birds have reached their limit of salt secretion. Thus, the birds must drink more fresh water to maintain the osmotic equilibrium necessary to their survival. As the Task Force predicts, “[t]he need for more time and energy to obtain fresh water will mean reduced energy and time for other vital activities such as feeding, nesting, etc. Birds attempting to breed at Mono Lake ․ are likely to suffer the most from direct salinity effects, since the adult birds must devote so much time to obtain fresh water that they may not be able to raise young successfully.” (Task Force Report, at p. 19.)
11. DWP contended that plaintiffs lack standing to sue to enjoin violations of the public trust, citing Antioch v. Williams Irr. Dist. (1922) 188 Cal. 451, 205 P. 688 and Miller & Lux v. Enterprise Canal and Land Co. (1904) 142 Cal. 208, 75 P. 770, both of which held that only the state or the United States could sue to enjoin diversions which might imperil downstream navigability. Judicial decisions since those cases, however, have greatly expanded the right of a member of the public to sue as a taxpayer or private attorney general. (See Van Atta v. Scott (1980) 27 Cal.3d 424, 447–450, 166 Cal.Rptr. 149, 613 P.2d 210, and cases there cited.) Consistently with these decisions, Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, expressly held that any member of the general public (p. 261, 98 Cal.Rptr. 790, 491 P.2d 374) has standing to raise a claim of harm to the public trust. (Pp. 261–262, 98 Cal.Rptr. 790, 491 P.2d 374; see also Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 161 Cal.Rptr. 466, 605 P.2d 1, in which we permitted a public interest organization to sue to enjoin allegedly unreasonable uses of water.) We conclude that plaintiffs have standing to sue to protect the public trust.
12. The federal practice of abstention sprang from the decision in Railroad Comm. of Texas v. Pullman Co. (1941) 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. (See generally, Wright et al., Federal Practice and Procedure, § 4241 et seq.) In Pullman, the Supreme Court held that, where resolution of an open state question presented in a federal action might prevent the federal court from reaching a constitutional question in that action, the court should stay its proceedings and order the parties to seek resolution of the state question in state courts. In Pullman -type cases, the federal court retains jurisdiction so that it may either apply the resolved state law, or resolve the state question itself if the state courts refuse to do so for any reason.Though federal abstention was originally limited to Pullman -type cases, the grounds for abstention were later expanded in accordance with the policies of federalism. Abstention is now “appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” (Colorado River Water Conservation Dist. v. United States (1976) 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 citing Louisiana Power & Light Co. v. City of Thibodaux (1959) 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 and Kaiser Steel Corp. v. W.S. Ranch Co. (1968) 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835.)Kaiser Steel is similar to the case at bar. In that diversity case, W.S. Ranch Co. sued Kaiser Steel for trespass. Kaiser claimed that a New Mexico statute authorized it to trespass as necessary for use of its water rights granted by New Mexico. The ranch replied that if the statute so authorized Kaiser, the statute would violate the state constitution, which allowed the taking of private property only for “public use.” Both the district court and the court of appeals reached the merits of the case after denying Kaiser's motion to stay the determination until conclusion of a declaratory relief action then pending in New Mexico courts. The United States Supreme Court reversed, reasoning in a per curiam opinion that “[t]he Court of Appeal erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources. The issue, moreover, is truly a novel one ․ [, and] will eventually have to be resolved by the New Mexico courts ․ Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource.” (Kaiser Steel Corp. v. W.S. Ranch Co., supra, 391 U.S. at p. 594, 88 S.Ct. at p. 1754.)
13. DWP objected to the form of the abstention order, and petitioned the United States Court of Appeals for the Ninth Circuit for leave to file an interlocutory appeal. The Ninth Circuit denied this petition.
14. DWP argues that the second superior court action, filed after the federal court's abstention order, constitutes a request for an advisory opinion and thus seeks relief beyond the jurisdiction of the California courts. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 119–120, 145 Cal.Rptr. 674, 577 P.2d 1014, and cases there cited.) No California case has discussed the propriety of a declaratory relief action filed to resolve an unsettled issue of California law following a federal court abstention. A holding that such a suit is an improper attempt to obtain an advisory opinion, however, would constitute a decision by the California courts to refuse to cooperate in the federal abstention procedure. It would thus compel federal courts to decide unsettled questions of California law which under principles of sound judicial administration (see Kaiser Steel Corp. v. W.S. Ranch Co., supra, 391 U.S. 593, 594, 88 S.Ct. 1753, 1754) should be resolved by the state courts.The usual objections to advisory opinions do not apply to the present case. This is not a collusive suit (compare People v. Pratt (1866) 30 Cal. 223), nor an attempt to get the courts to resolve a hypothetical future disagreement (compare Younger v. Superior Court, supra, 21 Cal.3d 102, 145 Cal.Rptr. 674, 577 P.2d 1014). It is, rather, one phase of a hotly contested current controversy. The only conceivable basis for refusing to decide the present case is that our decision will not finally resolve that controversy, but will serve only as an interim resolution of some issues necessary to the final decision. That fact, however, is insufficient to render the issue nonjusticiable. As the Court of Appeal stated in response to a similar contention, it is in the interest of the parties and the public that a determination be made; “even if that determination be but one step in the process, it is a useful one.” (Regents of University of California v. State Bd. of Equalization (1977) 73 Cal.App.3d 660, 664, 140 Cal.Rptr. 857.)If the issue of justiciability is in doubt, it should be resolved in favor of justiciability in cases of great public interest. (See, e.g., California Physicians' Service v. Garrison (1946) 28 Cal.2d 790, 801, 172 P.2d 4 [trial court's determination of justiciability will not be overturned on appeal absent clear showing of abuse of discretion]; Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 315–319, 5 P.2d 585 [jurisdiction retained over admittedly friendly suit of public importance, where dismissal would have delayed construction of Golden Gate Bridge]; California Water & Telephone Co. v. County of Los Angeles (1917) 253 Cal.App.2d 16, 26, 61 Cal.Rptr. 618 [doubts about the justiciability of a dispute should be resolved in favor of immediate adjudication, where “the public is interested in the settlement of the dispute.”].)
15. Spanish law and subsequently Mexican law also recognized the public trust doctrine. (See City of Los Angeles v. Venice Peninsula Properties (1982) 31 Cal.3d 288, 297, 182 Cal.Rptr. 599, 644 P.2d 792.) Commentators have suggested that the public trust rights under Hispanic law, guaranteed by the Treaty of Guadalupe Hidalgo, serve as an independent basis for the public trust doctrine in California. (See Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right (1980) 14 U.C.Davis L.Rev. 195, 197; Dyer, California Beach Access: The Mexican Law and the Public Trust (1972) 2 Ecology L.Q. 571.)
16. For the history of the public trust doctrine, see generally Sax, The Public Trust Doctrine In Natural Resource Law: Effective Judicial Intervention (1970) 68 Mich.L.Rev. 471; Stevens, op. cit. supra, 14 U.C.Davis L.Rev. 195.
17. A waterway usable only for pleasure boating is nevertheless a navigable waterway and protected by the public trust. (See People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403, 157 Cal.Rptr. 815, (South Fork of American River ); People ex rel. Baker v. Mack (1971) 19 Cal.App.3d 1040, 97 Cal.Rptr. 448 (Fall River ).)
18. For review of California decisions on navigability, see Dunning, op. cit. supra, 14 U.C.Davis L.Rev. 357, 384–386.
19. In view of the conclusion stated in the text, we need not consider the question whether the public trust extends for some purposes—such as protection of fishing, environmental values, and recreation interests—to nonnavigable streams. For discussion of this subject, see Walston, The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy (1982) 22 Santa Clara L.Rev. 63, 85.
20. In Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 282 P.2d 481, the court held that revenues derived from the use of trust property ordinarily must be used for trust purposes. (Pp. 205–206, 282 P.2d 481.) (See also City of Long Beach v. Morse (1947) 31 Cal.2d 254, 188 P.2d 17; State of California ex rel. State Lands Com. v. County of Orange (1982) 134 Cal.App.3d 20, 184 Cal.Rptr. 423.) The Legislature could abandon the trust over the proceeds, the court said, absent evidence that the abandonment would impair the power of future legislatures to protect and promote trust uses. (44 Cal.2d p. 207, 282 P.2d 481.) So long as the tidelands themselves remained subject to the trust, however, future legislatures would have the power to revoke the abandonment and reestablish a trust on the revenues. (Ibid.) (See City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 473–474, 38 Cal.Rptr. 834.)
21. In Colberg, Inc. v. State of California, supra, 67 Cal.2d 408, 62 Cal.Rptr. 401, 432 P.2d 3, the state constructed a freeway bridge which partially impaired navigation in the Stockton Deep Water Ship Channel. Upstream shipyard owners, disclaiming any reliance on the public trust, filed suit for damages on a theory of inverse condemnation. The opinion stated that “the state, as trustee for the benefit of the people, has power to deal with its navigable waters in any manner consistent with the improvement of commercial intercourse, whether navigational or otherwise.” (P. 419, 62 Cal.Rptr. 401, 432 P.2d 3.) It then concluded that lands littoral to navigable waters are burdened by a navigational servitude in favor of the state and, absent an actual taking of those lands, the owners cannot claim damages when the state acts within its powers.We agree with DWP and the state that Colberg demonstrates the power of the state, as administrator of the public trust, to prefer one trust use over another. We cannot agree, however, with DWP's further contention that Colberg proves the power of a state agency to abrogate the public trust merely by authorizing a use inconsistent with the trust. Not only did plaintiffs in Colberg deliberately decline to assert public trust rights, but the decision rests on the power of the state to promote one trust purpose (commerce) over another (navigation), not on any power to grant rights free of the trust. (See Dunning, op. cit. supra, 14 U.C.Davis L.Rev. 357, 382–388.)
22. We noted, however, that “any improvements made on such lands could not be appropriated by the state without compensation.” (Pp. 533–534, 162 Cal.Rptr. 327, 606 P.2d 362, citing Illinois Central R. Co. v. Illinois, supra, 146 U.S. 387, 455, 13 S.Ct. 110, 119, 36 L.Ed. 1018.)In State of California v. Superior Court (Fogerty), supra, 29 Cal.3d 240, 249, 172 Cal.Rptr. 713, 625 P.2d 256, we stated that owners of shoreline property in Lake Tahoe would be entitled to compensation if enforcement of the public trust required them to remove improvements. By implication, however, the determination that the property was subject to the trust, despite its implication as to future uses and improvements, was not considered a taking requiring compensation.
23. After the effective date of the 1928 amendment, no one can acquire a vested right to the unreasonable use of water. (See Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 145, 60 Cal.Rptr. 377, 429 P.2d 889; 1 Rogers & Nichols, op. cit. supra, p. 413 and cases there cited.)
24. Plaintiffs suggest that appropriative rights expressly conferred by the Legislature would not be limited by the public trust doctrine. The Attorney General informs us, however, that the Legislature has rarely created water rights by express legislation, but instead has delegated that task to the Water Board.
25. As we discussed earlier (ante, p. 360 of 189 Cal.Rptr., p. 723 of 658 P.2d), there are rare exceptions to the rule stated in the text. It is unlikely that these exceptions will often apply to usufructuary water rights. (See discussion in Johnson, op. cit. supra, 14 U.C. Davis L.Rev. 233, 263–264.)
26. In contrast, the population and economy of this state does not depend on the conveyance of vast expanses of tidelands or other property underlying navigable waters. (See Comment, The Public Trust Doctrine and California Water Law: National Audubon Society v. Dept. of Water and Power (1982) 33 Hastings L.J. 653, 668.) Our opinion does not affect the restrictions imposed by the public trust doctrine upon transfer of such properties free of the trust.
27. Amendments to the Water Code enacted in 1955 and subsequent years codify in part the duty of the Water Board to consider public trust uses of stream water. (See, ante, p. 363 of 189 Cal.Rptr., p. 726 of 658 P.2d).) The requirements of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) impose a similar obligation. (See Robie, op. cit. supra, 2 Ecology L.Q. 695.)These enactments do not render the judicially fashioned public trust doctrine superfluous. Aside from the possibility that statutory protections can be repealed, the noncodified public trust doctrine remains important both to confirm the state's sovereign supervision and to require consideration of public trust uses in cases filed directly in the courts without prior proceedings before the board.
28. The state Attorney General asserts that the Water Board could also reconsider the DWP water rights under the doctrine of unreasonable use under article X, section 2. DWP maintains, however, that its use of the water for domestic consumption is prima facie reasonable. The dispute centers on the test of unreasonable use—does it refer only to inordinate and wasteful use of water, as in Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 40 P.2d 486, or to any use less than the optimum allocation of water? (On this question, see generally Joslin v. Marin Mun. Water Dist., supra, 67 Cal.2d 132, 138–141, 60 Cal.Rptr. 377, 429 P.2d 889.) In view of our reliance on the public trust doctrine as a basis for reconsideration of DWP's usufructuary rights, we need not resolve that controversy.
29. The one objective study which has been done to date, the Report of the Interagency Task Force on Mono Lake recommended a sharp curtailment in the diversion of water by the DWP. (See Task Force Report at pp. 36–40.) The task force, however, had only the authority to make recommendations, and lacked power to adjudicate disputed issues of fact or law or to allocate water.
30. In approving the DWP appropriative claim, the 1940 Water Board relied on Water Code section 106 which states that “[i]t is hereby declared to be the established policy of this State that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation.” DWP points to this section, and to a 1945 enactment which declares a policy of protecting municipal water rights (Wat.Code, § 106.5), and inquires into the role of these policy declarations in any reconsideration of DWP's rights in the Mono Lake tributaries.Although the primary function of these provisions, particularly section 106, is to establish priorities between competing appropriators, these enactments also declare principles of California water policy applicable to any allocation of water resources. In the latter context, however, these policy declarations must be read in conjunction with later enactments requiring consideration of in-stream uses (Wat.Code, §§ 1243, 1257, quoted ante at pp. 44–45) and judicial decisions explaining the policy embodied in the public-trust doctrine. Thus, neither domestic and municipal uses nor in-stream uses can claim an absolute priority.
31. This case does not fall within the exception established in EDF II granting the board exclusive jurisdiction over reclamation of waste waters and other matters involving a potential danger to public health. (See EDF II, pp. 199–200, 161 Cal.Rptr. 466, 605 P.2d 1.) The issues involving Mono Lake are complex, and because the emerging lakebed may contribute to dust storms, the case includes a public health aspect. Nevertheless, those issues are more analogous to those typically decided by the courts under their concurrent jurisdiction (such as the claim of intervener in EDF II that the diversion point of water was too far upstream) than they are to the narrow and specialized problem of reclaiming waste water. If we read the exception in EDF II so broadly that any complex case with tangential effect on public health came within the board's exclusive jurisdiction, that exception would consume the rule of concurrent jurisdiction.
32. We noted in EDF I that “[t]he scope and technical complexity of issues concerning water resource management are unequalled by virtually any other type of activity presented to the courts.” (EDF I, supra, 20 Cal.3d 327, 344, 142 Cal.Rptr. 904, 572 P.2d 1128.)
33. The state Attorney General argues that even though the courts generally possess concurrent jurisdiction in water cases, the board should have exclusive jurisdiction over actions attacking a board-granted water right. In view of the reference power of the courts, we think this exception unnecessary. The court presently has the power to refer such cases to the board whenever reference is appropriate; a rule of exclusive jurisdiction, requiring all such cases to be initiated before the board, would not significantly improve the fairness or efficiency of the process. In some cases, including the present one, it would lead to unproductive controversy over whether the plaintiff is challenging a right granted by the board or merely asserting an alleged right of higher priority.
34. The superior court should determine whether plaintiffs are entitled to attorney fees under Code of Civil Procedure section 1021.5 and Woodland Hills Residents Ass'n, Inc. v. City Council (1979) 23 Cal.3d 917, 938–940, 154 Cal.Rptr. 503, 593 P.2d 200.
BROUSSARD, Justice.
BIRD, C.J., and MOSK, KAUS and REYNOSO, JJ., concur.
17 Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (1965)
Scenic Hudson Preservation Conference, Town of Cortlandt, Town of Putnam Valley and Town of Yorktown, Petitioners, v. Federal Power Commission, Respondent, Andconsolidated Edison Company of New York, Inc., Intervener, 354 F.2d 608 (2d Cir. 1965)
Annotate this Case
US Court of Appeals for the Second Circuit - 354 F.2d 608 (2d Cir. 1965)
1 Argued October 8, 1965
Decided December 29, 1965.
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Page 610
Lloyd K. Garrison, New York City, (Simon H. Rifkind, Albert K. Butzel, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, and Dale E. Doty, Washington, D. C., of counsel), for petitioner, Scenic Hudson Preservation Conference.
Samuel L. Slutsky, Putnam Valley, N. Y., for petitioner, Town of Putnam Valley.
John C. Tuttle, Peekskill, N. Y., on the brief, for petitioner, Town of Cortlandt.
John R. Kibbe and Raymond Margles, Yorktown Heights, N. Y., on the brief, for petitioner, Town of Yorktown.
Josephine H. Klein, Washington, D. C. (Richard A. Solomon, Gen. Counsel for Federal Power Commission, Howard E. Wahrenbrock, Sol., Melvin Spaeth, Asst. Gen. Counsel, Washington, D. C., on the brief), for respondent.
Randall J. LeBoeuf, Jr., New York City (LeBoeuf, Lamb & Lieby, New York City, on the brief), for intervener.
Before LUMBARD, Chief Judge and WATERMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge:
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In this proceeding the petitioners are the Scenic Hudson Preservation Conference, an unincorporated association consisting of a number of non-profit, conservationist organizations, and the Towns of Cortlandt, Putnam Valley and Yorktown. Petitioners ask us, pursuant to § 313(b) of the Federal Power Act, 16 U. S.C. § 825 l(b), to set aside three orders of the respondent, the Federal Power Commission:1
(a) An order of March 9, 1965 granting a license to the intervener, the Consolidated Edison Company of New York, Inc., to construct a pumped storage hydroelectric project on the west side of the Hudson River at Storm King Mountain in Cornwall, New York;
(b) An order of May 6, 1965 denying petitioners' application for a rehearing of the March 9 order, and for the reopening of the proceeding to permit the introduction of additional evidence;
(c) An order of May 6, 1965 denying joint motions filed by the petitioners to expand the scope of supplemental hearings to include consideration of the practicality and cost of underground transmission lines, and of the feasibility of any type of fish protection device.
A pumped storage plant generates electric energy for use during peak load periods,2 using hydroelectric units driven by water from a headwater pool or reservoir. The contemplated Storm King project would be the largest of its kind in the world. Consolidated Edison has estimated its cost, including transmission facilities, at $162,000,000. The project would consist of three major components, a storage reservoir, a powerhouse, and transmission lines. The storage reservoir,3 located over a thousand feet above the powerhouse, is to be connected to the powerhouse, located on the river front, by a tunnel 40 feet in diameter. The powerhouse, which is both a pumping and generating station, would be 800 feet long and contain eight pump generators.4
Transmission lines would run under the Hudson to the east bank and then underground for 1.6 miles to a switching station which Consolidated Edison would build at Nelsonville in the Town of Philipstown. Thereafter, overhead transmission lines would be placed on towers 100 to 150 feet high and these would require a path up to 125 feet wide5 through Westchester and Putnam Counties for a distance of some 25 miles until they reached Consolidated Edison's main connections with New York City.6
During slack periods Consolidated Edison's conventional steam plants in New York City would provide electric power for the pumps at Storm King to force water up the mountain, through the tunnel, and into the upper reservoir. In peak periods water would be released to rush down the mountain and power the generators. Three kilowatts of power generated in New York City would be necessary to obtain two kilowatts from the Cornwall installation. When pumping the powerhouse would draw approximately 1,080,000 cubic feet of water per minute from the Hudson, and when generating would discharge up to 1,620,000 cubic feet of water per minute into the river. The installation would have a capacity of 2,000,000 kilowatts, but would be so constructed as to be capable of enlargement to a total of 3,000,000 kilowatts. The water in the upper reservoir may be regarded as the equivalent of stored electric energy; in effect, Consolidated Edison wishes to create a huge storage battery at Cornwall. See Federal Power Commission, National Power Survey 120-21 (1964).
The Storm King project has aroused grave concern among conservationist groups, adversely affected municipalities and various state and federal legislative units and administrative agencies.7
To be licensed by the Commission a prospective project must meet the statutory test of being "best adapted to a comprehensive plan for improving or developing a waterway," Federal Power Act § 10(a), 16 U.S.C. § 803(a). In framing the issue before it, the Federal Power Commission properly noted:
" [W]e must compare the Cornwall project with any alternatives that are available. If on this record Con Edison has available an alternative source for meeting its power needs which is better adapted to the development of the Hudson River for all beneficial uses, including scenic beauty, this application should be denied."
If the Commission is properly to discharge its duty in this regard, the record on which it bases its determination must be complete. The petitioners and the public at large have a right to demand this completeness. It is our view, and we find, that the Commission has failed to compile a record which is sufficient to support its decision. The Commission has ignored certain relevant factors and failed to make a thorough study of possible alternatives to the Storm King project. While the courts have no authority to concern themselves with the policies of the Commission, it is their duty to see to it that the Commission's decisions receive that careful consideration which the statute contemplates. See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S. App.D.C. 409, 283 F.2d 204, 226, cert. denied, Panhandle Eastern Pipe Line Co. v. Michigan Consol. Gas Co., 364 U.S. 913, 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960). Petitioners' application, pursuant to § 313 (b), 16 U.S.C. § 825 l(b), to adduce additional evidence is granted.8 We set aside the three orders of the Commission to which the petition is addressed and remand the case for further proceedings in accordance with this opinion.
The Storm King project is to be located in an area of unique beauty and major historical significance. The highlands and gorge of the Hudson offer one of the finest pieces of river scenery in the world. The great German traveler Baedeker called it "finer than the Rhine." Petitioners' contention that the Commission must take these factors into consideration in evaluating the Storm King project is justified by the history of the Federal Power Act.
The Federal Water Power Act of 1920, 41 Stat. 1063 (1920) (now Federal Power Act, 16 U.S.C. § 791a et seq.), was the outgrowth of a widely supported effort on the part of conservationists to secure the enactment of a complete scheme of national regulation which would promote the comprehensive development of the nation's water resources. See Federal Power Comm. v. Union Electric Co., 381 U.S. 90, 98-99, 85 S. Ct. 1253, 14 L. Ed. 2d 239 (1965); First Iowa Hydro-Electric Coop. v. Federal Power Comm., 328 U.S. 152, 180, 66 S. Ct. 906, 90 L. Ed. 1143 (1946). See generally Cushman, The Independent Regulatory Commission 275-283 (1941); Pinchot, The Long Struggle for Effective Federal Water Power Legislation, 14 Geo. Wash. L. Rev. 9 (1945).9 It "was passed for the purpose of developing and preserving to the people the water power resources of the country." United States ex rel. Chapman v. Federal Power Comm., 191 F.2d 796, 800 (4th Cir. 1951), aff'd, 345 U.S. 153, 73 S. Ct. 609, 97 L. Ed. 918 (1953).
Congress gave the Federal Power Commission sweeping authority and a specific planning responsibility. First Iowa Hydro-Electric Coop. v. Federal Power Comm., 328 U.S. 152, 180-181, 66 S. Ct. 906, 919 (1946) ("instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted"); National Hells Canyon Ass'n v. Federal Power Comm., 99 U.S.App.D.C. 149, 237 F.2d 777 (1956), cert. denied, 353 U.S. 924, 77 S. Ct. 681, 1 L. Ed. 2d 720, rehearing denied, 353 U.S. 978, 77 S. Ct. 1054, 1 L. Ed. 2d 1139 (1957).
Section 10(a) of the Federal Power Act, 16 U.S.C. § 803(a), reads:
"§ 803. Conditions of license generally.
All licenses issued under sections 792, 793, 795-818, and 820-823 of this title shall be on the following conditions:
* * * * * * *
(a) That the project adopted, * * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval." (Emphasis added.)
"Recreational purposes" are expressly included among the beneficial public uses to which the statute refers. The phrase undoubtedly encompasses the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites.10 See Namekagon Hydro Co. v. Federal Power Comm., 216 F.2d 509, 511-512 (7th Cir. 1954). All of these "beneficial uses," the Supreme Court has observed, "while unregulated, might well be contradictory rather than harmonious." Federal Power Comm. v. Union Electric Co., 381 U.S. 90, 98, 85 S. Ct. 1253, 1258 (1965). In licensing a project, it is the duty of the Federal Power Commission properly to weigh each factor.
In recent years the Commission has placed increasing emphasis on the right of the public to "out-door recreational resources." 1964 F.P.C. Report 69. Regulations issued in 1963, for the first time, required the inclusion of a recreation plan as part of a license application. F.P.C. Order No. 260-A, amending § 4.41 of Regulations under Federal Power Act, issued April 18, 1963, 29 F.P.C. 777, 28 Fed.Reg. 4092. The Commission has recognized generally that members of the public have rights in our recreational, historic and scenic resources under the Federal Power Act. Namekagon Hydro Co., 12 F.P.C. 203, 206 (1954) ("the Commission realizes that in many cases where unique and most special types of recreation are encountered a dollar evaluation is inadequate as the public interest must be considered and it cannot be evaluated adequately only in dollars and cents"). In affirming Namekagon the Seventh Circuit upheld the Commission's denial of a license, to an otherwise economically feasible project, because fishing, canoeing and the scenic attraction of a "beautiful stretch of water" were threatened. Namekagon Hydro Co. v. Federal Power Comm., 216 F.2d 509, 511-512 (7th Cir. 1954).
Commissioner Ross said in his dissent in the present case: " [I]t appears obvious that had this area of the `Hudson Highlands' been declared a State or National park, that is, had the people in the area already spoken, we probably would have listened and might well have refused to license it."
Respondent argues that "petitioners do not have standing to obtain review" because they "make no claim of any personal economic injury resulting from the Commission's action."
Section 313(b) of the Federal Power Act, 16 U.S.C. § 825 l(b), reads:
"(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located * * *."
The Commission takes a narrow view of the meaning of "aggrieved party" under the Act. The Supreme Court has observed that the law of standing is a "complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations * * *." United States ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 156, 73 S. Ct. 609, 612, 97 L. Ed. 918 (1953). Although a "case" or "controversy" which is otherwise lacking cannot be created by statute, a statute may create new interests or rights and thus give standing to one who would otherwise be barred by the lack of a "case" or "controversy." The "case" or "controversy" requirement of Article III, § 2 of the Constitution does not require that an "aggrieved" or "adversely affected" party have a personal economic interest. See State of Washington Dept. of Game v. Federal Power Comm., 207 F.2d 391 (9th Cir. 1953), cert. denied, 347 U.S. 936, 74 S. Ct. 626, 98 L. Ed. 1087 (1954); Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953); cf. Scripps-Howard Radio, Inc. v. Federal Communications Comm., 316 U.S. 4, 62 S. Ct. 875, 86 L. Ed. 1229 (1942); Federal Communications Comm. v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S. Ct. 693, 84 L. Ed. 869 (1940); International Union of Electrical, Radio and Machine Workers v. Underwood Corp., 219 F.2d 100, 103 (2d Cir. 1955); Associated Industries, Inc. v. Ickes, 134 F.2d 694 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct. 74, 88 L. Ed. 414 (1943); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255 (1961). Even in cases involving original standing to sue, the Supreme Court has not made economic injury a prerequisite where the plaintiffs have shown a direct personal interest. See, e. g., School District of Abington Township v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962); Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952).
In State of Washington Dept. of Game v. Federal Power Comm., 207 F.2d 391, 395 n. 11 (9th Cir. 1953), cert. denied, 347 U.S. 936, 74 S. Ct. 626 (1954), the Washington State Sportsmen's Council, Inc., a non-profit organization of residents, the State of Washington, Department of Game, and the State of Washington, Department of Fisheries, opposed the construction of a dam because it threatened to destroy fish. The Federal Power Commission granted the license; the interveners applied for a rehearing which the Commission denied. Petitioners asked for review under § 313(b) and the court upheld their standing, noting:
"All are `parties aggrieved' since they claim that the Cowlitz Project will destroy fish in [sic] which they, among others, are interested in protecting."
The Federal Power Act seeks to protect non-economic as well as economic interests.11 Indeed, the Commission recognized this in framing the issue in this very case:
"The project is to be physically located in a general area of our nation steeped in the history of the American Revolution and of the colonial period. It is also a general area of great scenic beauty. The principal issue which must be decided is whether the project's effect on the scenic, historical and recreational values of the area are such that we should deny the application."
In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of "aggrieved" parties under § 313(b). We hold that the Federal Power Act gives petitioners a legal right to protect their special interests. See State of Washington Dept. of Game v. Federal Power Comm., supra.
At an earlier point in these proceedings the Commission apparently accepted this view. Consolidated Edison strongly objected to the petitioners' standing, but the Commission did not deny their right to file an application for a rehearing under § 313(a) of the Act which also speaks in terms of "aggrieved parties."12
Moreover, petitioners have sufficient economic interest to establish their standing. The New York-New Jersey Trail Conference, one of the two conservation groups that organized Scenic Hudson, has some seventeen miles of trailways in the area of Storm King Mountain. Portions of these trails would be inundated by the construction of the project's reservoir.
The primary transmission lines are an integral part of the Storm King project. See Federal Power Act § 3(11), 16 U.S.C. § 796(11).13 The towns that are co-petitioners with Scenic Hudson have standing because the transmission lines would cause a decrease in the proprietary value of publicly held land, reduce tax revenues collected from privately held land, and significantly interfere with long-range community planning. See City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741, 748 (1956). Yorktown, for example, fears that the transmission lines would run over municipal land selected for a school site, greatly decreasing its value and interfering with school construction. Putnam Valley faces similar interference with local planning and a substantial decrease in land tax revenues.14
We see no justification for the Commission's fear that our determination will encourage "literally thousands" to intervene and seek review in future proceedings. We rejected a similar contention in Associated Industries, Inc. v. Ickes, 134 F.2d 694, 707 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct. 74 (1943), noting that "no such horrendous possibilities" exist. Our experience with public actions confirms the view that the expense and vexation of legal proceedings is not lightly undertaken.
In any case, the Federal Power Act creates no absolute right of intervention; § 308(a), 16 U.S.C. § 825g(a), reads:
"In any proceeding before it, the Commission, in accordance with such rules and regulations as it may prescribe, may admit as a party any interested State, State commission, municipality, or any representative of interested consumers or security holders, or any competitor of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest."
Since the right to seek review under § 313(a) and (b) is limited to a "party" to the Commission proceeding, the Commission has ample authority reasonably to limit those eligible to intervene or to seek review. See Alston Coal Co. v. Federal Power Comm., 137 F.2d 740, 742 (10th Cir. 1943). Representation of common interests by an organization such as Scenic Hudson serves to limit the number of those who might otherwise apply for intervention and serves to expedite the administrative process.
The Federal Power Act § 313(b), 16 U.S.C. § 825 l(b), reads in part:
"(b) If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper."
The Commission in its opinion recognized that in connection with granting a license to Consolidated Edison it "must compare the Cornwall project with any alternatives that are available." There is no doubt that the Commission is under a statutory duty to give full consideration to alternative plans. See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, 224-226, cert. denied, Eastern Pipe Line Co. v. Michigan Consol. Gas Co., 364 U.S. 913, 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960); City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).
In City of Pittsburgh, three months after the hearings were closed, the petitioners attempted to present to the Commission memoranda supporting an alternative suggestion. The District of Columbia Circuit set aside the Commission's order and remanded the case with directions to reopen the record. It found that the Commission had improperly rejected as "untimely" evidence concerning the proposed alternative. The court stated that:
"The existence of a more desirable alternative is one of the factors which enters into a determination of whether a particular proposal would serve the public convenience and necessity. That the Commission has no authority to command the alternative does not mean that it cannot reject the [original] proposal." City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741, 751 n. 28 (1956).
In the present case, the Commission heard oral argument on November 17, 1964, on the various exceptions to the Examiner's report. On January 7, 1965 the testimony of Mr. Alexander Lurkis, as to the feasibility of an alternative to the project, the use of gas turbines, was offered to the Commission by Hilltop Cooperative of Queens, a taxpayer and consumer group. The petition to intervene and present this new evidence was rejected on January 13, 1965 as not "timely." It was more than two months after the offer of this testimony, on March 9, 1965, that the Commission issued a license to Consolidated Edison. When Mr. Lurkis's testimony was subsequently re-offered by the petitioners on April 8, 1965, it was rejected because it represented "at best" a "disagreement between experts." On the other hand, we have found in the record no meaningful evidence which contradicts the proffered testimony supporting the gas turbine alternative.
Mr. Lurkis is a consulting engineer of thirty-nine years experience. He has served as Chief Engineer of the New York City Bureau of Gas and Electric, in charge of a staff of 400, and as Senior Engineer of the New York City Transit Authority, where he supervised the design and construction of power plants.15 The New York Joint Legislative Committee on Natural Resources,16 after holding hearings on the Storm King project on November 19 and 20, 1964, summarized Mr. Lurkis's testimony as follows:
"Mr. Alexander Lurkis * * * presented a detailed proposal for using gas turbines. This, he claimed, would meet the alleged peaking need of Con Ed and result in a saving for its customers of $132,000,000. The Committee has learned that similar gas turbine installations are now in use or proposed for use by a number of progressive electric utilities throughout the nation. In addition to meeting the alleged peak power needs and saving money for the ratepayer, the gas turbines proposed by Mr. Lurkis would have the following advantages:
1) Permit the company greater flexibility in meeting the power needs of its service area. Admittedly, technological developments in power production are changing and improving this field at such a rapid rate that it may well be entirely revolutionized in 10 to 15 years. There are obvious advantages in the gas turbine installations. Small installations can be added as needed to meet demand. This, in contrast to a single, giant, permanent installation such as Con Ed proposes at Storm King Mountain, which would tie the technology and investment of one company to a method of power production that might be obsolete in a few years.
2) Keep the power production facilities within New York City. This would not only avoid the desecration of the Hudson Gorge and Highlands, but, also, would eliminate the great swathe of destruction down through Putnam and Westchester Counties and their beautiful suburban communities." Preliminary Report at 6.
The Committee report, issued on February 16, 1965, three weeks before the license to Consolidated Edison was granted, concluded:
" [T]he whole situation involved in the Consolidated Edison Storm King Mountain project, and the protection of the Hudson River and its shores, requires further and extensive study and investigation.
* * * * * * *
This Committee goes on record as opposing Con Ed's application until there has been adequate study of the points indicated in this report." Preliminary Report at 8.
Mr. Lurkis's analysis was based on an intensive study of the Consolidated Edison system, and of its peaking needs projected year by year over a fifteen year period. He was prepared to make an economic comparison of a gas turbine system (including capital and fuel operating costs) and the Storm King pumped storage plant. Moreover, he was prepared to answer Consolidated Edison's objections to gas turbines by indicating:
(1) that gas turbines could meet Consolidated Edison's reserve needs;
(2) that the blackouts of 1959 and 1961 were caused by breakdowns in distribution, not by a lack of power;
(3) that gas turbines would avoid the hazards of weather damage to high transmission lines involved in the Storm King project;
(4) that since 3 kilowatts of power must be generated by steam plants in New York City in order to get 2 kilowatts of power from the Storm King project, gas turbines would be even more useful than the project in reducing air pollution;
(5) that noise from the turbines would be at acceptable industrial levels.
Other benefits envisioned from gas turbines were higher reliability, increased system flexibility, and possible savings in transmission line investment.17
Aside from self-serving general statements by officials of Consolidated Edison, the only testimony in the record bearing on the gas turbine alternative was offered by Ellery R. Fosdick. Fosdick's hastily prepared presentation considered turbines driven by steam and liquid fuel as well as gas; his direct testimony occupied less than ten pages of the record.18 Fosdick's testimony was too scanty to meet the requirement of a full consideration of alternatives. Indeed, under the circumstances, we must conclude that there was no significant attempt to develop evidence as to the gas turbine alternative; at least, there is no such evidence in the record.
The Commission argues that petitioners made "no attempt to secure additional testimony." Yet the record indicates that more than two months before the license was granted the Commission summarily rejected the offer of Mr. Lurkis's testimony.
It is not our present function to evaluate this evidence. Our focus is upon the action of the Commission. The fact that Lurkis's testimony was originally offered by a non-petitioner, Hilltop Cooperative, is irrelevant. A party acting as a "private attorney general" can raise issues that are not personal to it. See Associated Industries, Inc. v. Ickes, 134 F.2d 694, 705 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct. 74, 88 L. Ed. 414 (1943); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255, 283 (1961) ("the right to attack an order resting on a record made by others, or no record at all, could be valuable").
Especially in a case of this type, where public interest and concern is so great, the Commission's refusal to receive the Lurkis testimony, as well as proffered information on fish protection devices and underground transmission facilities,19 exhibits a disregard of the statute and of judicial mandates instructing the Commission to probe all feasible alternatives. Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S. App.D.C. 409, 283 F.2d 204, 224, 226, cert. denied, 364 U.S. 913, 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960); City of Pittsburgh v. Federal Power Comm., 99 U.S. App.D.C. 113, 237 F.2d 741 (1956).
The Federal Power Commission argues that having intervened "petitioners cannot impose an affirmative burden on the Commission." But, as we have pointed out, Congress gave the Federal Power Commission a specific planning responsibility. See Federal Power Act § 10(a), 16 U.S.C. § 803(a). The totality of a project's immediate and long-range effects, and not merely the engineering and navigation aspects, are to be considered in a licensing proceeding. As Commissioner Ross said in his dissent:
"I do feel the public is entitled to know on the record that no stone has been left unturned. How much better it would be if the public is clearly advised under oath and cross examination that there truly is no alternative? The thread running through this case has been that the applicant is entitled to a license upon making a prima facie case. My own personal regulatory philosophy compels me to reject this approach. This Commission of its own motion, should always seek to insure that a full and adequate record is presented to it. A regulatory commission can insure continuing confidence in its decisions only when it has used its staff and its own expertise in manner not possible for the uninformed and poorly financed public. With our intimate knowledge of other systems and to a lesser extent of their plans, it should be possible to resolve all doubts as to alternative sources. This may have been done but the record doesn't speak. Let it do so."
In this case, as in many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.
This court cannot and should not attempt to substitute its judgment for that of the Commission. But we must decide whether the Commission has correctly discharged its duties, including the proper fulfillment of its planning function in deciding that the "licensing of the project would be in the overall public interest." The Commission must see to it that the record is complete. The Commission has an affirmative duty to inquire into and consider all relevant facts. See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, 224, 226, cert. denied, 364 U.S. 913, 81 S. Ct. 276 (1960); Isbrandtsen Co. v. United States, 96 F. Supp. 883, 892 (S.D. N.Y.1951), aff'd by an equally divided court, A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 342 U.S. 950, 72 S. Ct. 623, 96 L. Ed. 706 (1952); Friendly, The Federal Administrative Agencies 144 (1962); Landis, The Administrative Process 36-46 (1938); cf. City of Pittsburgh v. Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).
In Michigan Consolidated Gas Co. v. Federal Power Comm., supra, 283 F.2d at 224, the Court of Appeals of the District of Columbia, in criticizing the Federal Power Commission for refusing to consider an alternative and for failing to take the initiative in seeking information, observed:
"Even assuming that under the Commission's rules Panhandle's rejection of the settlement rendered the proposal ineffective as a settlement, it could not, and we believe should not, have precluded the Commission from considering the proposal on its merits. Indeed, the proposal appears prima facie to have merit enough to have required the Commission at some stage of the proceeding to consider it on its own initiative as an alternative to total abandonment." (Emphasis added.)
On rehearing the court added:
"In viewing the public interest, the Commission's vision is not to be limited to the horizons of the private parties to the proceeding.
Where, as here, a regulatory agency has ignored factors which are relevant to the public interest, the scope of judicial review is sufficiently broad to order their consideration. These limits are not to be confused with the narrower ones governing review of an agency's conclusions reached upon proper consideration of the relevant factors." Id. at 226.
Judge Frank, in response to a submission similar to the one made here, said:
"This is a somewhat surprising contention, to be contrasted with the following views of Commissioner Aitchison of the Interstate Commerce Commission concerning the obligations of administrative agencies: `* * * The agency does not do its duty when it merely decides upon a poor or nonrepresentative record. As the sole representative of the public, which is a third party in these proceedings, the agency owes the duty to investigate all the pertinent facts, and to see that they are adduced when the parties have not put them in * * *. The agency must always act upon the record made, and if that is not sufficient, it should see the record is supplemented before it acts. It must always preserve the elements of fair play, but it is not fair play for it to create an injustice, instead of remedying one, by omitting to inform itself and by acting ignorantly when intelligent action is possible * * *.'"
Isbrandtsen Co. v. United States, 96 F. Supp. 883, 892 (S.D.N.Y. 1951), affirmed by an equally divided court, A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 342 U.S. 950, 72 S. Ct. 623 (1952). And Dean Landis said:
"For [the administrative] process to be successful in a particular field, it is imperative that controversies be decided as `rightly' as possible, independently of the formal record the parties themselves produce. The ultimate test of the administrative is the policy that it formulates; not the fairness as between the parties of the disposition of a controversy on a record of their own making." Landis, The Administrative Process 39 (1938).
In addition to the Commission's failure to receive or develop evidence concerning the gas turbine alternative, there are other instances where the Commission should have acted affirmatively in order to make a complete record.
The Commission neither investigated the use of interconnected power as a possible alternative to the Storm King project, nor required Consolidated Edison to supply such information. The record sets forth Consolidated Edison's interconnection with a vast network of other utilities, but the Commission dismissed this alternative by noting that "Con Edison is relying fully upon such interconnections in estimating its future available capacity." However, only ten pages later in its opinion the Commission conceded:
"Of significant importance, in our opinion, is the absence in the record, or the inadequacy, of information in regard to Con Edison's future interconnection plans; its plans, if any, for upgrading existing transmission lines to higher voltages; and of its existing transmission line grid in this general area and its future plans."
Moreover, in its October 4, 1965 order, the Commission in explaining how Consolidated Edison would be able to send "substantial amounts" of Storm King power to upstate New York and New England power companies, each December, said:
"ample spinning reserve would be available during the winter from the interconnected companies in New Jersey and Pennsylvania, including the `mine-mouth' plants. Thus, even at times of the greatest diversion of Cornwall power, Con Edison would have other power sources immediately available to it for its peak requirements."
If interconnecting power can replace the Storm King project in December, why was it not considered as a permanent alternative?
Commissioner Ross in his dissent said:
"In my opinion, the only true alternative that would likely be as economic as the proposed project would be purchased peaking power. There are two possibly differing sources; one would be purchasing pumped storage or normal hydro peaking which may be in the process of development in New England; or secondly, purchasing steam peaking power from new large scale thermal stations in Pennsylvania or in Appalachia."
There is no evidence in the record to indicate that either the Commission or Consolidated Edison ever seriously considered this alternative.20 Nor is there any evidence that a combination of devices, for example, gas turbine and interconnections, were considered. Indeed, the Commission stated in its brief that it is "of doubtful relevance to the present case whether there are practical alternatives to an appropriate use of water power by which Con Ed could meet its anticipated needs for peaking power with generally comparable economy." The failure of the Commission to inform itself of these alternatives cannot be reconciled with its planning responsibility under the Federal Power Act.
In its March 9 opinion the Commission postponed a decision on the transmission route to be chosen until the May 1965 hearings were completed. Inquiry into the cost of putting lines underground was precluded because the May hearings were limited to the question of overhead transmission routes. The petitioners' April 26, 1965 motion to enlarge the scope of the May hearing was denied. The Commission insisted that the question of underground costs had been "extensively considered." We find almost nothing in the record to support this statement.21
Consolidated Edison estimated the cost of underground transmission at seven to twelve times that of overhead lines.22 These estimates were questioned by the Commission's own staff, which pointed out that Consolidated Edison's estimates incorrectly assumed that the underground route would be the same as the overhead; in fact, an underground route along the New York Central right-of-way would be clearly less costly than the estimate, since there are no large differences of elevation requiring special pumping facilities and no new cross-country right-of-way would be necessary. Moreover, the staff noted that the estimates were based on Consolidated Edison's experience in New York, where excavation and other costs are higher. The Examiner noted the staff's reservations in his opinion, but since no alternative figures had been presented, he accepted those submitted by Consolidated Edison, as did the Commission.23
Consolidated Edison witnesses testified that the Storm King project would result in annual savings of $12,000,000 over a steam plant of equivalent capacity. Given these savings, the Commission should at least have inquired into the capital and annual cost of running segments of the transmission line underground in those areas where the overhead structures would cause the most serious scenic damage. We find no indication that the Commission seriously weighed the aesthetic advantages of underground transmission lines against the economic disadvantages.24
At the time of its original hearings, there was sufficient evidence before the Commission concerning the danger to fish to warrant further inquiry. The evidence included a letter from Kenneth Holum, Assistant Secretary of the Department of the Interior, and a statement made for the record by Robert A. Cook, on behalf of the New York State Water Resources Commission in which Mr. Cook said: " [T]he possibility still exists that extensive losses of eggs and/ or young of valuable species might occur after installation of the proposed screening devices."
Just after the Commission closed its proceedings in November the hearings held by the New York State Legislative Committee on Natural Resources alerted many fisherman groups to the threat posed by the Storm King project. On December 24 and 30, January 8, and February 3 each of four groups, concerned with fishing, petitioned for the right to intervene and present evidence. They wished to show that the major spawning grounds for the distinct race of Hudson River striped bass was in the immediate vicinity of the Storm King project and not "much farther upstream" as inferred by Dr. Perlmutter, the one expert witness called by Consolidated Edison; to attempt to prove that, contrary to the impression given by Dr. Perlmutter, bass eggs and larvae float in the water, at the mercy of currents; that due to the location of the spawning ground and the Hudson's tidal flow, the eggs and larvae would be directly subject to the influence of the plant and would be threatened with destruction; that "no screening device presently feasible would adequately protect these early stages of fish life" and that their loss would ultimately destroy the economically valuable fisheries. Their evidence also indicated that in the case of shad, the young migrate from their spawning grounds, down past Cornwall, and being smaller than the meshes of the contemplated fish screens, would be subject to the hazards already described.25 The Commission rejected all these petitions as "untimely," and seemingly placing great reliance on the testimony of Dr. Perlmutter, concluded:
"The project will not adversely affect the fish resources of the Hudson River provided adequate protective facilities are installed."
Although an opportunity was made available at the May hearings for petitioners to submit evidence on protective designs, the question of the adequacy of any protective design was inexplicably excluded by the Commission.
Recent events illustrate other deficiencies in the Commission's record. In hearings before the House Subcommittee on Fisheries and Wildlife Studying the Hudson River Spawning Grounds, 89th Cong. 1st Sess., May 10, 11, 1965, Mr. James McBroom, representing the Department of the Interior, stated:
"Practical screening methods are known which could prevent young-of-the-year striped bass and shad from being caught up in the [Storm King] project's pumps, but practical means of protection of eggs and larvae stages have yet to be devised. Furthermore the location of the proposed plant appears from available evidence to be at or very near the crucial spot as to potential for harm to the overall production of eggs and larvae of the Hudson River striped bass. The cumulative effect of unmitigated loss of eggs and larvae of striped bass by this power project could have a serious effect on the Hudson River striped bass fishery and the dependent fisheries around Long Island and offshore."
Mr. E. L. Cheatum, representing the New York State Conservation Department, gave similar testimony. At the May hearings the testimony of Mr. Walburg and Mr. Wagner, witnesses for the Department of Interior, and Dr. Raney and Mr. Massmann, witnesses for Scenic Hudson, was substantially to the same effect. Indeed, the Commission in its October 4 order acknowledged that the protective device to which it had previously referred favorably (March 9 order) "may not be adequate to provide the protection required" (October 4 order).
On remand, the Commission should take the whole fisheries question into consideration before deciding whether the Storm King project is to be licensed.
The Commission should reexamine all questions on which we have found the record insufficient and all related matters. The Commission's renewed proceedings must include as a basic concern the preservation of natural beauty and of national historic shrines, keeping in mind that, in our affluent society, the cost of a project is only one of several factors to be considered. The record as it comes to us fails markedly to make out a case for the Storm King project on, among other matters, costs, public convenience and necessity, and absence of reasonable alternatives. Of course, the Commission should make every effort to expedite the new proceedings.
Petitioners' application, pursuant to Federal Power Act § 313(b), 16 U.S.C. § 825 l (b), to adduce additional evidence concerning alternatives to the Storm King project and the cost and practicality of underground transmission facilities is granted.
The licensing order of March 9 and the two orders of May 6 are set aside, and the case remanded for further proceedings.
1
At oral argument petitioners made a motion to enlarge the record by including in it the supplemental hearings conducted before a Trial Examiner of the Federal Power Commission in May 1965. These hearings were limited to consideration of the routes of overhead transmission facilities and the design of fish protection devices. Petitioners allege that the May hearings divulge information which should have been developed and considered by the Commission at the time the license was granted. We are not being asked to review the October 4, 1965 order, setting forth the Commission's determination of the questions presented at the May hearings, but rather to consider evidence compiled at the May hearings as a convenient source of information from which inferences can be drawn about the completeness of the March 9 record. For this limited purpose we have granted petitioners' motion
2
Capacity for peak load periods is that part of a system's generating equipment which is operated intermittently for short periods during the hours of highest daily, weekly, or seasonal kilowatt demand
3
The project's reservoir would contain a surface area of 240 acres and a usable capacity of 25,000 acre-feet. A part of the space which it would occupy is now occupied by a reservoir providing part of the water supply for the Village of Cornwall. Another area consisting of approximately 70 acres of property within the Black Rock Forest, a private forest reserve of Harvard University, would also be inundated by the proposed reservoir. Consolidated Edison has offered appropriate compensation for the acreage which would be used
4
According to plans presented to the Federal Power Commission three pumping generator units would be installed and go into operation in mid-1967 and the remaining five in 1968
5
However, the path might be even wider at corners, transportation points, access points, or points of an unusual character
6
As has already been noted we are not now concerned with the order of October 4, 1965 in which the Commission established the exact route of the transmission lines and the width of the right-of-way
7
For bills introduced in Congress for the purpose of preserving the Hudson River and adjacent areas see House Introduction No. H.R. 3012, 3918; Senate Introduction No. S. 1386. Hearings were held on May 10 and 11, 1965 before the House of Representatives Subcommittee on Fisheries and Wildlife Conservation. House of Representatives, 89th Cong., 1st Sess., on Hudson River Spawning Grounds
The New York Joint Legislative Committee on Natural Resources held hearings on November 19 and 20, 1964. See Preliminary Report on the Joint Legislative Committee on Natural Resources, On the Hudson River Valley and the Consolidated Edison Company Storm King Mountain Project (issued February 16, 1965) (hereinafter cited "Preliminary Report").
The Fish and Wildlife Service of the Department of the Interior and the New York State Conservation Department have expressed concern about the effect of the project on the fish life of the Hudson. See Part IV infra.
Numerous conservationist groups have interested themselves in the project, and many of them filed formal petitions to intervene before the Commission.
8
The hearings to which the third order refers have already been held; however, the relief petitioners seek is provided by our determination as to the second order
9
The Supreme Court has noted that:
"The movement toward the enactment of the Act in 1920 may be said to have taken its keynote from President Roosevelt's veto of a bill which would have turned over to private interests important power sites on the Rainy River." Federal Power Comm. v. Union Electric Co., 381 U.S. 90, 98-99 n. 11, 85 S. Ct. 1253, 1258 (1965).
President Roosevelt's veto message read:
"We are now at the beginning of great development in water power. Its use through electrical transmission is entering more and more largely into every element of the daily life of the people. Already the evils of monopoly are becoming manifest; already the experience of the past shows the necessity of caution in making unrestricted grants of this great power." 42 Cong.Rec. 4698 (1908).
See also President Roosevelt's veto of the James River bill, H.R. 17767, 60th Cong., 2d Sess. (1909), veto message, 43 Cong.Rec. 978 (1909); President Roosevelt's letter appointing the Inland Waterways Commission, 42 Cong.Rec. 6968 (1908), which read in part:
"Works designed to control our waterways have thus far usually been undertaken for a single purpose, such as the improvement of navigation, the development of power, the irrigation of arid lands, the protection of lowlands from floods, or to supply water for domestic and manufacturing purposes. While the rights of the people to these and similar uses of water must be respected, the time has come for merging local projects and uses of the inland waters in a comprehensive plan designed for the benefit of the entire country. Such a plan should consider and include all the uses to which streams may be put, and should bring together and coordinate the points of view of all users of waters.
* * * * *
" [The plans of the Commission should be formulated] in the light of the widest knowledge of the country and the people, and from the most diverse points of view."
10
The clear intention of Congress to emphasize "recreational purposes" is indicated by the fact that subsection (a) was amended in 1935 by substituting the present language "plan for improving or developing * * * including recreational purposes" for "scheme of improvement and utilization for the purposes of navigation, of water-power development, and of other beneficial public uses." Senate Rep.No.621, 74th Cong., 1st Sess., page 45 stated that the amendment was intended to add "an express provision that the Commission may include consideration of recreational purposes."
11
See discussion in Part I, supra
12
Federal Power Act § 313(a), 16 U.S.C. § 825 l(a), reads:
"§ 825 l. Rehearing; court review of orders
(a) Any person, State, municipality, or State commission aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person, State, municipality, or State commission is a party may apply for a rehearing within thirty days after the issuance of such order."
13
Federal Power Act § 3(11), 16 U.S.C. § 796(11) reads:
"` [P]roject' means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit." (Emphasis added.)
14
Permitting the Commission, for reasons of convenience and practicality, to limit the licensing proceeding and to hold for later determination the route of transmission lines, does not divest the petitioning towns of their standing. If we accepted the Commission's contrary argument we would be required to withdraw from the towns their right to challenge the entire integrated project
Although the order of October 4, 1965 is not before us for review, we note that the Commission has conceded in its Supplemental Brief that Putnam Valley is in the same position as before the order and that the transmission route chosen "might be sufficient to cause aggrievement" to petitioner, Yorktown.
15
Mr. Lurkis has made numerous studies of utility adequacy including a survey of "blackouts" in New York during 1959 and 1961, which resulted in revisions of the Consolidated Edison system. He is a member of many professional associations and has published numerous articles and presented many papers on electrical engineering subjects
16
A total of 107 witnesses were heard; the large majority objected to the project
17
Citing Federal Power Comm. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S. Ct. 435, 5 L. Ed. 2d 377 (1961) the Commission asserts that "serious policy questions" would be raised by the use of gas, for the generation of electrical energy. But the serious questions alluded to do not excuse the Commission's failure to develop and hear pertinent evidence on the alternative. As to the use of gas, the Supreme Court held in Transcontinental that "a flexible balancing process, in the course of which all factors are weighed prior to final determination," is needed in each case. Id. at 23, 81 S. Ct. at 447
18
Fosdick conceded that he had no firsthand knowledge of the Consolidated Edison system or its requirements. He had been unable to make a study of the economics of alternative methods of generating peaking power, nor had he made an examination of New York City power needs. His testimony on air pollution, which was favorable to Consolidated Edison, was addressed to a question on the "burning of kerosene" and not of natural gas, a non-pollutant
19
See Part IV infra
20
At page 39 of the record Mr. M. L. Waring, senior vice-president of Consolidated Edison, described the interconnection system but failed to answer the question: "Would this not be an economical substitute for the pumped storage project?" In later testimony to a similar question he responded: "Yes, [other sources of power] are available, but not in sufficient quantity."
But there was no evidence introduced as to the amount of power available.
21
The Commission contends that petitioners failed to raise the issue of underground transmission line costs, and the bearing of these costs on the licensing of the project, in their Application for Rehearing. But in listing Commission errors, petitioners said:
"finally it excluded from the consideration of * * * where to put the transmission lines the deeper questions of * * * what the cost would be of putting additional portions of the transmission lines underground."
The Philipstown Citizens Association, in its Application for Rehearing, specifically urged that the "Commission committed error in excluding further consideration of underground transmission at the remand hearings which started on May 4, 1965."
As we said earlier, the petitioners may raise issues which are not personal to them.
22
Compare Federal Power Commission, National Power Survey 156 (1964). ("Efforts are frequently made to require utilities to place transmission circuits underground. In some circumstances buried cables are advantageous, but the usual cost is 5 to 10 times that of overhead circuits.")
23
The Commission did state the underground costs would be prohibitive "except for short distances," but no substantiation of this position was offered nor was a definition of short distance given
24
Commissioner Ross remarked that "the tactics of [Consolidated Edison] were obviously dictated by the precedential effect of underground transmission." See testimony of senior vice-president Waring. " [T]here are thousands of miles of transmission and distribution lines elsewhere in our territory and in the State of New York, where there is just as much or more reason to put the transmission lines underground as there is here."
This approach is unacceptable. Each case must be judged on its own merits. The area involved here is an area of "unique beauty," as Commissioner Ross noted in his dissenting opinion.
25
The Committee concluded:
"The Hudson River is a spawning ground for shad and striped bass. A multi-million dollar fishing industry, both commercial and sport, has been built on this process of nature. * * * The Joint Legislative Committee * * goes on record as being unalterably opposed to the granting of Con Ed's application, until such time as there is definite, impartial and conclusive proof that the project will not have an adverse effect on the fish life and spawning process upon which the fishing industry depends for its livelihood." Preliminary Report 7.
18
SCRAP v. U.S., 412 U.S. 669 (1973)
2 United States Supreme Court
1 UNITED STATES v. SCRAP, (1973)
2 No. 72-535
3 Argued: February 28, 1973 Decided: June 18, 1973
The Interstate Commerce Act permits railroads to file proposed freight rate increases, with at least 30 days' notice to the Interstate Commerce Commission (ICC) and the public before putting the new rates into effect. The ICC may, pursuant to 15 (7) of the Act, suspend the operation of the proposed rates for as long as seven months, in order to investigate the lawfulness of the rates. At the end of the seven-month period, the carrier may put the suspended rates into effect unless the ICC has completed its investigation and found the rates unlawful. Proceeding under the statutory scheme, substantially all the Nation's railroads sought a 2.5% surcharge on nearly all freight rates, as an emergency measure to obtain increased revenues pending adoption of selective rate increases on a permanent basis. Shippers, competing carriers, and other interested persons requested the ICC to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund, appellees here, protested that failure to suspend the surcharge would cause their members "economic, recreational and aesthetic harm," and specifically, that the new rate structure would discourage the use of "recyclable" materials and promote the use of raw materials that compete with scrap, thus adversely affecting the environment. On February 1, 1972, the ICC issued an order announcing its decision not to suspend the surcharge for the seven-month period, and on April 24, 1972, ordered the proposed selective increases filed by the carriers to be suspended for the full seven-month period ending November 30, 1972, and permitted the collection of the surcharge until that date. SCRAP filed the [412 U.S. 669, 670] present suit seeking, inter alia, an injunction to restrain enforcement of the February 1 and April 24 orders allowing the carriers to collect the surcharge. SCRAP, an unincorporated association formed by five law students to enhance the quality of the environment, claimed that its members "suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure," that each of its members was caused to pay more for finished products, that each of its members uses the forests, rivers, mountains, and other natural resources of the Washington, D.C., area and at his legal residence for camping, hiking, fishing, and other purposes, and that these uses have been adversely affected by increased freight rates. The main thrust of SCRAP's complaint was that the ICC's orders were unlawful for failure to include a detailed environmental impact statement as required by 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332 (2) (C). The three-judge District Court found that appellees had standing to sue. The court held that its power to grant an injunction was not barred by Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 , because NEPA "implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements . . . so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed." The court concluded that the ICC's decision not to suspend the surcharge for the seven-month period was a "major federal action significantly affecting the quality of the human environment," and granted an injunction prohibiting the ICC "from permitting" and the railroads "from collecting" the surcharge "insofar as that surcharge relates to goods being transported for purposes of recycling." Held:
1. Appellees' pleadings sufficiently alleged that they were "adversely affected" or "aggrieved" within the meaning of 10 of the Administrative Procedure Act to withstand a motion to dismiss on the ground of lack of standing to sue. Sierra Club v. Morton, 405 U.S. 727 , distinguished. Pp. 683-690.
(a) Standing is not confined to those who show economic harm, as "[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society." Sierra Club, supra, at 734. P. 686.
(b) Here, the appellees claimed that the specific and allegedly illegal action of the ICC would directly harm them in their use of the natural resources of the Washington area. Pp. 686-687. [412 U.S. 669, 671]
(c) Standing is not to be denied because many people suffer the same injury. Pp. 687-688.
(d) It cannot be said on these pleadings that appellees could not prove their allegations, which, if proved, would place them squarely among those persons injured in fact by the ICC's action and entitled to review under Sierra Club, supra. Pp. 688-690.
2. The District Court lacked jurisdiction to issue the injunction. Pp. 690-698.
(a) Arrow Transportation, supra, held that Congress in 15 (7) had vested exclusive jurisdiction in the ICC to suspend rates pending its final decision on their lawfulness and had deliberately extinguished judicial power to grant such relief; and the factual distinctions between the instant case and Arrow Transportation are inconsequential. Pp. 690-692.
(b) The alleged noncompliance by the ICC with NEPA did not give the District Court authority to grant the injunction, as NEPA was not intended to repeal by implication any other statute, and the policies identified in Arrow Transportation as the basis for 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because of noncompliance with NEPA. Pp. 692-698.
346 F. Supp. 189, reversed and remanded.
STEWART, J., delivered the opinion of the court, in which BRENNAN and BLACKMUN, JJ., joined; in Parts I and II of which DOUGLAS and MARSHALL, JJ., joined; and in Parts I and III of which BURGER, C. J., and WHITE and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 699. DOUGLAS, J., filed an opinion dissenting in part, post, p. 699. WHITE, J., filed an opinion dissenting in part, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 722. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 724. POWELL, J., took no part in the consideration or decision of the cases.
[ Footnote * ] Together with No. 72-562, Aberdeen & Rockfish Railroad Co. et al. v. Students Challenging Regulatory Agency Procedures (SCRAP) et al., also on appeal from the same court.
Solicitor General Griswold argued the cause for the United States et al. in No. 72-535. With him on the briefs were Assistant Attorney General Frizzell, Edward R. Korman, Fritz R. Kahn, Betty Jo Christian, and James F. Tao. Hugh B. Cox argued the cause for appellants in No. 72-562. With him on the briefs were Charles A. Horsky, Michael Boudin, and Edward A. Kaier. [412 U.S. 669, 672]
Peter H. Meyers argued the cause pro hac vice for Students Challenging Regulatory Agency Procedures, appellee in both cases. With him on the brief was John F. Banzhaf III. John F. Dienelt argued the cause pro hac vice for Environmental Defense Fund et al., appellees in both cases. With him on the brief was Dennis M. Flannery.Fn
Fn [412 U.S. 669, 672] Jerome J. McGrath filed a brief for Independent Natural Gas Association of America as amicus curiae urging reversal. Edward L. Merrigan filed a brief for National Association of Secondary Material Industries, Inc., as amicus curiae urging affirmance.
MR. JUSTICE STEWART delivered the opinion of the Court.
Under the Interstate Commerce Act, the initiative for rate increases remains with the railroads. But in the absence of special permission from the Interstate Commerce Commission, a railroad seeking an increase must provide at least 30 days' notice to the Commission and the public before putting the new rate into effect. 49 U.S.C. 6 (3). 1 During that 30-day period, the Commission [412 U.S. 669, 673] may suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision on the lawfulness of the new rates. 49 U.S.C. 15 (7). 2 At the end of the seven-month [412 U.S. 669, 674] period, the carrier may put the suspended rate into effect unless the Commission has earlier completed its investigation and found the rate unlawful. 3
Proceeding under this regulatory scheme, on December 13, 1971, substantially all of the railroads in the United States requested Commission authorization to file on 5 days' notice a 2.5% surcharge on nearly all freight rates. The railroads sought a January 1, 1972, effective date for the new rates. The surcharge was proposed as an interim emergency measure designed to produce some $246 million annually in increased revenues pending adoption of selective rate increases on a permanent basis.
As justification for the proposed surcharge, the railroads alleged increasing costs and severely inadequate revenues. In its last general revenue increase case, less than two years earlier, the Commission had found:
"[T]he financial condition of the railroad industry as a whole, and the financial status of many individual carriers by rail, must be found to be at a dangerously low level. The precipitous decline in working capital and serious loss of liquidity has reduced many carriers to a truly marginal operation. This has been most clearly demonstrated by the recent bankruptcy application of the Penn Central. We think it undeniable that a number of [412 U.S. 669, 675] other roads are approaching a similar financial crisis." Ex parte Nos. 265/267, Increased Freight Rates, 1970 and 1971, 339 I. C. C. 125, 173.
The railroads alleged that, since the close of that proceeding, their costs had increased by over $1 billion on an annual basis, including $305 million in increased wages, while economic indicators such as decreased working capital and increased debt obligations pointed toward an ever-worsening financial condition. 4
In an order dated December 21, 1971, the Commission acknowledged the need, particularly of some carriers, for increased revenues, but it concluded that five days' notice and a January 1, 1972, effective date "would preclude the public from effective participation." Ex parte No. 281, Increased Freight Rates and Charges, 1972, 340 I. C. C. 358, 361. The Commission authorized the railroads to refile the 2.5% surcharge with not less than 30 days' notice, and an effective date no earlier than February 5, 1972.
On January 5, 1972, the railroads refiled the surcharge, to become effective on February 5, 1972. Shippers, competing carriers, and other interested persons requested the Commission to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund (EDF), two of the appellees here, protested that failure to suspend the surcharge would cause their members "economic, [412 U.S. 669, 676] recreational and aesthetic harm." Specifically, they claimed that the rate structure would discourage the use of "recyclable" materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. The railroads replied that since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that in the past general rate increases had not discouraged the movement of scrap materials.
The Commission issued an order on February 1, 1972, shortly before the surcharge would have automatically become effective. It recognized that "the railroads have a critical need for additional revenue from their interstate freight rates and charges to offset, in part, recently incurred increased operating costs," and announced its decision not to suspend the 2.5% surcharge for the seven-month statutory period. 5 In anticipation of the proposed permanent selective increases to be filed by the railroads and to avoid further complication of the tariff rates, the Commission specified that its refusal to suspend was conditioned upon the carriers' setting an expiration date for the surcharge of no later than June 5, 1972. 6 The Commission ordered the investigation into [412 U.S. 669, 677] the railroads' rates which had been instituted by its December 21 order to be held in abeyance until the carriers requested permission to file the indicated permanent rate increases on a selective basis. With respect to the appellees' environmental arguments, the Commission found that "the involved general increase will have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the [National] Environmental Policy Act of 1969."
The proposed permanent selective increases, averaging 4.1%, were subsequently filed with the Commission, and various parties again requested that these proposed rates also be suspended. By order served March 6, 1972, the Commission did not grant the railroads' request to have the selective increases go into effect on April 1, 1972, as they had sought but it allowed the carriers to republish their rates to become effective on May 1, 1972, upon not less than 45 days' notice to the public. The carriers did republish the rates, and on April 24, 1972, the Commission entered an order suspending the proposed selective increase for the full seven-month period allowed by statute, or to and including November 30, 1972. 7 The investigation into the increased rates was continued. Since the selective increases were to supplant the temporary surcharge, and since they had been suspended, the Commission modified its February 1 order and authorized the railroads to eliminate the June 5 expiration date for [412 U.S. 669, 678] the surcharge and to continue collecting the surcharge until November 30, 1972.
4 I
On May 12, 1972, SCRAP filed the present suit against the United States and the Commission in the District Court for the District of Columbia seeking, along with other relief, a preliminary injunction to restrain enforcement of the Commission's February 1 and April 24 orders allowing the railroads to collect the 2.5% surcharge.
SCRAP stated in its amended complaint that it was "an unincorporated association formed by five law students . . . in September, 1971. Its primary purpose is to enhance the quality of the human environment for its members, and for all citizens . . . ." To establish standing to bring this suit, SCRAP repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members "suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure, as modified by the Commission's actions to date in Ex parte 281." Specifically, SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members "[u]ses the forests, rivers, streams, mountains, and other natural resources surrounding the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes," and that these uses have been adversely affected by the increased freight rates, that each of its members breathes the air within the Washington metropolitan area and the area of his legal residence and that this air has suffered increased pollution caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials. [412 U.S. 669, 679]
The main thrust of SCRAP's complaint was that the Commission's decisions of February 1 and April 24, insofar as they declined to suspend the 2.5% surcharge, were unlawful because the Commission had failed to include a detailed environmental impact statement as required by 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332 (2) (C). NEPA requires such a statement in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment . . . ." Ibid. 8 SCRAP contended that because [412 U.S. 669, 680] of its alleged adverse impact upon recycling, the Commission's action with respect to the surcharge constituted a major federal action significantly affecting the environment.
Three additional environmental groups, also appellees here, were allowed to intervene as plaintiffs, and a group of railroads, appellants here, intervened as defendants to support the 2.5% surcharge. 9 After a single district [412 U.S. 669, 681] judge had denied the defendants' motion to dismiss and SCRAP's motion for a temporary restraining order, a statutory three-judge district court was convened pursuant to 28 U.S.C. 2284, 2325, to decide the motion for a preliminary injunction and the cross-motion to dismiss the complaint.
On July 10, 1972, the District Court filed an opinion, 346 F. Supp. 189, and entered an injunction prohibiting the Commission "from permitting," and the railroads "from collecting" the 2.5% surcharge "insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court." 10
The court first rejected the contention that the appellees were without standing to sue because they allegedly had no more than "a general interest in seeing that the law is enforced," id., at 195, and distinguished our recent decision in Sierra Club v. Morton, 405 U.S. 727 , on the [412 U.S. 669, 682] basis that, unlike the petitioner in Sierra Club, the environmental groups here had alleged that their members used the forests, streams, mountains and other resources in the Washington area and that this use was disturbed by the environmental impact caused by nonuse of recyclable goods.
Second, the court found that its power to grant an injunction was not barred by our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 667 , where we held that in enacting 49 U.S.C. 15 (7), Congress had intentionally vested "in the Commission the sole and exclusive power to suspend" and withdrew "from the judiciary any pre-existing power to grant injunctive relief." The court reasoned that NEPA "implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements" "so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed." 346 F. Supp., at 197 and n. 11.
Finally, turning to the merits, the court concluded that the Commission's April 24 decision not to suspend the surcharge for the statutory seven-month period was a "`major Federal action significantly affecting the quality of the human environment.'" Id., at 199. On the premise that an environmental impact statement is required "whenever the action arguably will have an adverse environmental impact," id., at 201, the court held that "the danger of an adverse impact is sufficiently real to require a statement in this case." Ibid.
The District Court declined to stay its injunctive order pending appeal to this Court, and on July 19, 1972, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, denied applications to stay the preliminary injunction. 409 U.S. 1207 . On December 18, 1972, we noted probable jurisdiction of the appeals filed by the [412 U.S. 669, 683] United States, the Commission, and the railroads. 409 U.S. 1073 . 11
5 II
The appellants challenge the appellees' standing to sue, arguing that the allegations in the pleadings as to standing [412 U.S. 669, 684] were vague, unsubstantiated, and insufficient under our recent decision in Sierra Club v. Morton, supra. The appellees respond that unlike the petitioner in Sierra [412 U.S. 669, 685] Club, their pleadings sufficiently alleged that they were "adversely affected" or "aggrieved" within the meaning of 10 of the Administrative Procedure Act (APA), 5 U.S.C. 702, 12 and they point specifically to the allegations that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. The District Court found these allegations sufficient to withstand a motion to dismiss. We agree.
The petitioner in Sierra Club, "a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations," 405 U.S., at 739 , sought a declaratory judgment and an injunction to restrain federal officials from approving the creation of an extensive ski resort development in the scenic Mineral King Valley of the Sequoia National Forest. the Sierra Club claimed standing to maintain its "public interest" lawsuit because it had "`a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country . . . .'" Id., at 730. We held those allegations insufficient. [412 U.S. 669, 686]
Relying upon our prior decisions in Data Processing Service v. Camp, 397 U.S. 150 , and Barlow v. Collins, 397 U.S. 159 , we held that 10 of the APA conferred standing to obtain judicial review of agency action only upon those who could show "that the challenged action had caused them `injury in fact,' and where the alleged injury was to an interest `arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 U.S., at 733 . 13
In interpreting "injury in fact" we made it clear that standing was not confined to those who could show "economic harm," although both Data Processing and Barlow had involved that kind of injury. Nor, we said, could the fact that many persons shared the same injury be sufficient reason to disqualify from seeking review of an agency's action any person who had in fact suffered injury. Rather, we explained: "Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Id., at 734. Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those [412 U.S. 669, 687] resources suffered the same harm, deprives them of standing.
In Sierra Club, though, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club. In that case the asserted harm "will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort," id., at 735, yet "[t]he Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the . . . development." Ibid. Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan Area.
Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club, the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons [412 U.S. 669, 688] across the Nation could be adversely affected by major governmental actions. See, e. g., Environmental Defense Fund v. Hardin, 428 F.2d 1093, 1097 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing, 205 F.2d 630, 631-632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.
But the injury alleged here is also very different from that at issue in Sierra Club because here the alleged injury to the environment is far less direct and perceptible. The petitioner there complained about the construction of a specific project that would directly affect the Mineral King Valley. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained - a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appellees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact.
Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, [412 U.S. 669, 689] not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected. 14 If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. 15 We cannot say on these pleadings that the appellees [412 U.S. 669, 690] could not prove their allegations which, if proved, would place them squarely among those persons injured in fact by the Commission's action, and entitled under the clear import of Sierra Club to seek review. The District Court was correct in denying the appellants' motion to dismiss the complaint for failure to allege sufficient standing to bring this lawsuit.
6 III
We need not reach the issue whether, under conventional standards of equity, the District Court was justified in issuing a preliminary injunction, because we have concluded that the court lacked jurisdiction to enter an injunction in any event.
The District Court enjoined the Commission from "permitting," and the railroads from "collecting," the 2.5% interim surcharge on recyclable commodities. Finding that NEPA implicitly conferred authority "on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements," 346 F. Supp., at 197, it concluded that our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 , did not affect judicial power to issue an injunction in the circumstances of this case. We cannot agree.
In Arrow, the Commission had suspended a railroad's proposed rates for the statutory seven-month period, and the railroad had voluntarily deferred the proposed rate [412 U.S. 669, 691] for an additional five months. When the Commission had not reached a final decision within that period, the railroad announced its intent to adopt the new rates. In a suit brought to enjoin the railroad from effectuating that change, we held that the courts were without power to issue such an injunction. From the language and history of 15 (7) of the Interstate Commerce Act, we concluded that Congress had vested exclusive power in the Commission to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief. The factual distinctions between the present cases and Arrow are inconsequential.
It is true that the injunction in Arrow was sought after the statutory seven-month period had expired and thus represented an attempt to extend judicially the suspension period, while here the injunction was issued during the suspension period. But Arrow was grounded on the lack of power in the courts to grant any injunction before the Commission had finally determined the lawfulness of the rates, and that holding did not depend on the fact that the availability of the Commission's power of suspension had passed. Indeed, the federal court decisions cited and approved in Arrow involved instances where the courts had been asked to enjoin rates during the statutory seven-month period. See, e. g., M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573, aff'd, 239 F. 718; Freeport Sulphur Co. v. United States, 199 F. Supp. 913; Bison S. S. Corp. v. United States, 182 F. Supp. 63; Luckenbach S. S. Co. v. United States, 179 F. Supp. 605, 609-610, vacated in part as moot, 364 U.S. 280 ; Carlsen v. United States, 107 F. Supp. 398.
Similarly, there is no significance in the fact that, unlike Arrow, the injunction in this litigation ran against the Commission as well as the railroads. The only [412 U.S. 669, 692] way in which the Commission could comply with the court's order would be to exercise its power of suspension and suspend the surcharge. The injunction constitutes a direct interference with the Commission's discretionary decision whether or not to suspend the rates. It would turn Arrow into a sheer formality and effectively amend 15 (7) if a federal court could accomplish by injunction against the Commission what it could not accomplish by injunction directly against the railroads. And, again, the federal court decisions on which Arrow relied were for the most part cases in which the courts had held that they were without power to compel the Commission to grant a rate suspension. See, e. g., Bison S. S. Corp. v. United States, supra; Luckenbach S. S. Co. v. United States, supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United States, supra. 16
Thus, the only arguably significant distinction between the present litigation and Arrow is that here the Commission allegedly failed to comply with NEPA. However, we cannot agree with the District Court that NEPA has amended 15 (7) sub silentio and created an implicit exception to Arrow so that judicial power to grant injunctive [412 U.S. 669, 693] relief in this case has been revived. 17 NEPA, one of the recent major federal efforts at reversing the deterioration of the country's environment, declares "that it is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. 4331. To implement these lofty purposes, Congress imposed a number of responsibilities upon federal agencies, most notably the requirement of producing a detailed environmental impact statement for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332 (2) (C). 18 But [412 U.S. 669, 694] nowhere, either in the legislative history or the statutory language, is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by 15 (7) of the Interstate Commerce Act.
The statutory language, in fact, indicates that NEPA was not intended to repeal by implication any other statute. Thus, 42 U.S.C. 4335 specifies that "[t]he policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies," and 42 U.S.C. 4334 instructs that the Act "shall [not] in any way affect the specific statutory obligations of any Federal agency . . . ." Rather than providing for any wholesale overruling of prior law, NEPA requires all federal agencies to review their "present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of [NEPA] and shall propose to the President . . . such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in [NEPA]." 42 U.S.C. 4333. It would be anomalous if Congress had provided at one and the same time that federal agencies, which have the primary responsibility for the implementation of NEPA, 19 must comply with present law and ask for any necessary new legislation, but that the courts may simply ignore what [412 U.S. 669, 695] we described in Arrow as "a clear congressional purpose to oust judicial power . . . ." 372 U.S., at 671 n. 22. 20
The District Court pointed to nothing either in the language or history of NEPA that suggests a restoration of previously eliminated judicial power. While it relied primarily on the decisions of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S. App. D.C. 33, 449 F.2d 1109, and Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S. App. D.C. 380, 463 F.2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs' held that a federal court had power to review rules promulgated by the Atomic Energy Commission, and there the court ordered further consideration of the rules on the ground that there had not been compliance with NEPA. In Committee for Nuclear Responsibility it was held that federal courts had jurisdiction to consider whether an executive decision to conduct a nuclear test had satisfied the procedural requirements [412 U.S. 669, 696] of NEPA. The question here, however, is not whether there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not, cf. Arrow Transportation Co. v. Southern R. Co., supra, at 671 n. 22; Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 , but rather whether in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by Congress. Calvert Cliffs' and Committee for Nuclear Responsibility have nothing to say on this issue, for neither was concerned with a specific statute that restricts the power of the federal courts to grant injunctions. 21
Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow as the basis for 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged.
First, Arrow found that the Commission had been granted exclusive suspension powers in order to avoid the diverse results that had previously been reached by the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates had been jeopardized, and different shippers, carriers, and areas of the country had been subjected to disparate treatment. Similarly, since a suit to enjoin a national rate increase on NEPA grounds could be brought in any federal district court in the country, see 28 U.S.C. 2284, 2321-2325, the result might easily be that the courts would [412 U.S. 669, 697] "[reach] diverse results, . . . [engendering] confusion and [producing] competitive inequities." 372 U.S., at 663 . In short, a rate increase allowed in New York might be disallowed in New Jersey.
Second, we stressed in Arrow that 15 (7) represents a careful accommodation of the various interests involved. The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that if the Commission did not act within the suspension period, then the new rates would automatically go into effect and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed accounts and eventually to repay the increased rates if found unlawful. To allow judicial suspension for noncompliance with NEPA, would disturb this careful balance of interests. A railroad may depend for its very financial life on an increased rate, and the rate may be perfectly just and reasonable. Granting an injunction against that rate based on the Commission's alleged noncompliance with NEPA, although the Commission had determined not to suspend the rate, would deprive the railroad of vitally needed revenues and result in an unjustified windfall to shippers.
Finally, we found in Arrow that any survival of a judicial power to grant interim injunctive relief would represent an undesirable interference with the orderly exercise of the Commission's power of suspension. Similarly, to grant an injunction in the present context, even though not based upon a substantive consideration of the rates, would directly interfere with the Commission's decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow that "Congress meant to foreclose a judicial power to interfere [412 U.S. 669, 698] with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction." 372 U.S., at 668 . As the Court of Appeals for the Second Circuit explained in Port of New York Authority v. United States, 451 F.2d 783, 788, where, on the basis of alleged noncompliance with NEPA, an injunction was sought against a Commission order refusing to suspend rates:
"The basis of the decision in Arrow - that to permit judicial interference with the Commission's suspension procedures would invite the very disruption in the orderly review of the lawfulness of proposed tariffs that Congress meant to preclude - applies with equal force to the issue now before us."
Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so, 22 its judgment must be reversed [412 U.S. 669, 699] and the cases remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL took no part in the consideration or decision of these cases.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring.
I join the Court's judgment and its opinion, but because of the presence of the first sentence of Part III of the opinion, and to avoid any misunderstanding as to my posture, I add a few words.
For the reasons stated in my dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 755 (1972), I would hold that the appellees here have standing to maintain this action based on their allegations of harm to the environment resulting from the Commission's order of April 24, 1972. And, in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities, prove that they in fact were injured. Rather, I would require only that appellees, as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact and that such injury would be irreparable and substantial.
7 Footnotes
[ Footnote 1 ] Title 49 U.S.C. 6 (3) provides: "No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect: and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided. That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further. That the Commission is authorized to [412 U.S. 669, 673] make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges, or classifications not changed if, in its judgment, not inconsistent with the public interest."
[ Footnote 2 ] Title 49 U.S.C. 15 (7) provides in pertinent part: "Whenever there shall be filed with the Commission any schedule stating a new . . . rate, fare, or charge, . . . the Commission shall have . . . authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, [or] charge . . .; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, [or] charge . . ., but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, [or] charge . . . goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, [or] charge . . . shall go into effect at the end of such period; but in case of a proposed increased rate or charge for or in respect to the transportation of property, the Commission may by order require the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or [412 U.S. 669, 674] charges as by its decision shall be found not justified. At any hearing involving a change in a rate, fare, [or] charge . . . after September 18, 1940, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, [or] charge . . . is just and reasonable, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible."
[ Footnote 3 ] Other statutory provisions giving suspension powers to the Commission include 49 U.S.C. 316 (g), 318 (c) (Motor Carrier Act); 49 U.S.C. 907 (g), (i) (Water Carrier Act); 49 U.S.C. 1006 (e) (Freight Forwarders Act).
[ Footnote 4 ] Figures reported to the Commission indicated that the net working capital of the Class I railroads for the 12 months ending September 30, 1971, was only $75.4 million, approximately $33.7 million less than the year-end 1970 figure. Long-term debt maturing within one year from September 30, 1971, was $43.6 million higher than on December 31, 1970. Equipment obligations at the end of 1970 were $4,448 million, or almost twice the total in 1960.
[ Footnote 5 ] The order of the ICC is unreported.
[ Footnote 6 ] The Commission also imposed as a condition on its refusal to suspend the exclusion of increased rates "on freight in trailer bodies, semi-trailers, vehicles or containers on flat cars, on export and [412 U.S. 669, 677] import traffic." Since such increases had been proposed only by the western and southern carriers and not by the eastern carriers, such increases would, in the Commission's view, have disrupted existing port relationships. Finally, the Commission conditioned its action on the provision that the proposed surcharge would not apply to shipments originating prior to February 5, 1972, and moving under transit arrangements.
[ Footnote 7 ] The March 6 and April 24 orders of the ICC are unreported.
[ Footnote 8 ] Section 102, 42 U.S.C. 4332, provides in pertinent part: "The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall - . . . . . "(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on - "(i) the environmental impact of the proposed action, "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, "(iii) alternatives to the proposed action, "(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and "(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. "Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, [412 U.S. 669, 680] the Council on Environmental Quality and to the public . . . and shall accompany the proposal through the existing agency review processes."
[ Footnote 9 ] The Environmental Defense Fund, National Parks and Conservation Association, and Izaak Walton League of America intervened as plaintiffs. The allegations as to standing made by each of these groups were similar to those made by SCRAP. EDF, for example, alleged as follows: "EDF has a nationwide membership of over 32,000 persons composed of scientists, educators, lawyers and other citizens dedicated to the protection of our environment and the wise use of our natural resources. Each of EDF's members has a personal interest in the maintenance of a safe, healthful, productive environment as free from waste substances as is possible. EDF's members have contributed financially to EDF in part so that they may obtain adequate representation of their legally protected environmental interests, which representation they could not otherwise individually afford. Each of EDF's members has under 101 (c) of NEPA, `a responsibility to contribute to the preservation and enhancement of the environment,' which responsibility they fulfill in part by becoming a member of and contributing to EDF. "The increased freight rates and charges in Ex Parte 281 and the continuance of the underlying rate structure, which discriminate against movement of secondary (recyclable) materials, will cause EDF members individualized injury and adversely affect them in one or more of their activities and pastimes. Specifically, each EDF member: (i) has been or will be caused to pay more for products in the market place, made more expensive by both the non-use of recycled materials in their manufacture, and the need to use comparatively more energy in processing primary raw materials as opposed to secondary (recyclable) materials; (ii) uses the [412 U.S. 669, 681] nation's forests, rivers, streams, mountains, and other natural resources for camping, hiking, fishing, sightseeing, and other recreational and aesthetic purposes. These uses have been and will continue to be adversely affected to the extent that the freight rate structure, as modified thus far in Ex Parte 281, encourages destruction of virgin timber, the unnecessary extraction of nonrenewable resources, and the discharge and accumulation of otherwise recyclable materials."
[ Footnote 10 ] The court dismissed as moot that part of the complaint relating to the Commission's February 1 order because that order had expired by its own terms on June 5. Since the environmental groups have not appealed from the judgment below, we have before us for review only the District Court's action with regard to the Commission's April 24 order that allowed the surcharge to continue until November 30, 1972. The court also concluded that since the Commission had taken no final action with respect to the 4.1% selective increase, the lawfulness of that tariff was not ripe for review. The court did, however, retain jurisdiction over the case to review the final order of the Commission.
[ Footnote 11 ] While subsequent events do not bear directly on the validity of the District Court's action in granting the preliminary injunction, they do highlight the problems that hover in the background of this litigation. On October 4, 1972, the Commission served its report and order in Ex parte 281 approving, with some exceptions, the general increases filed by the railroads. Increased Freight Rates and Charges, 1972, 341 I. C. C. 290. In that report, although the Commission gave extensive consideration to environmental aspects of the rate increases, it declined to include a formal environmental impact statement because it concluded that its actions "will neither actually nor potentially significantly affect the quality of the human environment . . . ." Id., at 314. The selective increases were to become effective on October 23, 1972, but the Commission delayed until November 12 the effective date for rate increases on recyclable commodities in order to allow the submission of comments by interested parties. Upon the submission of critical comments, the Commission, in an unreported order served on November 8, reopened the rate proceeding in Ex parte 281 for further evaluation of the rates on recyclable commodities, and ordered the proposed selective tariff increases on those commodities suspended for the full seven-month period authorized by statute - until June 10, 1973. Accordingly, with respect to recyclable commodities on which the proposed selective increase had been suspended, the Commission extended the expiration date of the 2.5% surcharge until June 10, 1973, the expiration date for the suspension of the selective increases. But the Commission acknowledged that the power to collect the surcharge on these recyclable commodities was barred by the preliminary injunction issued by the District Court in the present case and which is the subject of the present appeals. In short, the temporary 2.5% surcharge would have been in effect throughout this period on recyclable commodities but for the District Court's resilient preliminary injunction. Whether the Commission deliberately continued the surcharge beyond the time it would have been supplanted by the selective increases in order to [412 U.S. 669, 684] give the surcharge and the District Court's injunction continuing effect and thus avoid mooting this litigation, and whether the Commission acted beyond its powers under 49 U.S.C. 15 (7) by suspending the selective increases for a second seven-month period and by treating the District Court's injunction as having continuing effect, are questions not raised here. No party now maintains that these cases are moot. Cf. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 . Both sets of appellees filed motions in the District Court: SCRAP sought a preliminary injunction against the Commission's October 4 order, and EDF and the other intervening plaintiffs sought leave to file an amended and supplemental complaint and requested other relief. On January 9, 1973, the court deferred consideration of the EDF motions and denied SCRAP's request for a preliminary injunction. The court found that as a result of the Commission's November 8 order, neither the selective rate increases nor the temporary surcharge could be assessed on recyclable commodities. Consequently, the court found, no injunctive relief was justified as to those materials. While the permanent rate increase approved by the Commission in Ex parte 281 was then being collected on shipments of all other commodities, and although the Commission had concededly failed to file an impact statement, the court concluded that "the danger of an adverse impact appears to be sufficiently speculative . . . that it would be unsound to grant preliminary relief." The court continued: "The record indicates that many railroads are in dire financial straits - some on the verge of bankruptcy - and badly need the revenues now being obtained under the Commission's rate increase. The increase amounts to some $340 million per year, and were this revenue flow halted it could not easily be recouped should it later appear that no NEPA statement was necessary." The merits of neither the Commission's October 4 order nor the District Court's January 9 decision are before us, and we therefore express no opinion on them. On May 7, 1973, the Commission served its final environmental impact statement relating to the selective rate increases on recyclable commodities. It concluded that the proposed increases would have no significant adverse effect on the environment. Contending that the impact statement was inadequate, EDF and SCRAP sought to [412 U.S. 669, 685] enjoin collection of the selective rate increases. On June 7, 1973. the District Court temporarily enjoined the railroads from collecting the selective increases on recyclable commodities. On June 8, 1973. THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, stayed the District Court's injunction pending further order of this Court.
[ Footnote 12 ] Like the petitioner in Sierra Club, the appellees here base their standing to sue upon the APA, 5 U.S.C. 702, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
[ Footnote 13 ] As in Sierra Club, it is unnecessary to reach any question concerning the scope of the "zone of interests" test or its application to this case. It is undisputed that the "environmental interest" that the appellees seek to protect is within the interests to be protected by NEPA, and it is unnecessary to consider the various allegations of economic harm on which the appellees also relied in their pleadings and which the Government contends are outside the intended purposes of NEPA.
[ Footnote 14 ] The Government urges us to limit standing to those who have been "significantly" affected by agency action. But, even if we could begin to define what such a test would mean, we think it fundamentally misconceived. "Injury in fact" reflects the statutory requirement that a person be "adversely affected" or "aggrieved," and it serves to distinguish a person with a direct stake in the outcome of a litigation - even though small - from a person with a mere interest in the problem. We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, see Baker v. Carr, 369 U.S. 186 ; a $5 fine and costs, see McGowan v. Maryland, 366 U.S. 420 ; and a $1.50 poll tax, Harper v. Virginia Bd. of Elections, 383 U.S. 663 . While these cases were not dealing specifically with 10 of the APA, we see no reason to adopt a more restrictive interpretation of "adversely affected" or "aggrieved." As Professor Davis has put it: "The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation." Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613. See also K. Davis, Administrative Law Treatise 22.09-5, 22.09-6 (Supp. 1970).
[ Footnote 15 ] The railroads object to the fact that the allegations were not more precise - that no specific "forest" was named, that there was no assertion of the existence of any lumbering camp or other extractive facility in the area. They claim that they had no way to answer such allegations which were wholly barren of specifies. But, if that [412 U.S. 669, 690] were really a problem, the railroads could have moved for a more definite statement, see Fed. Rule Civ. Proc. 12 (e), and certainly normal civil discovery devices were available to the railroads. Similarly, the District Court cannot be faulted for failing to take evidence on the issue of standing. This case came before the court on motions to dismiss and for a preliminary injunction. If the railroads thought that it was necessary to take evidence, or if they believed summary judgment was appropriate, they could have moved for such relief.
[ Footnote 16 ] EDF suggests that the April 24 order of the Commission was in fact a final order finding the surcharge "just and reasonable," not simply a refusal to suspend the surcharge. But the Commission's reference to the "just and reasonable" nature of the surcharge was a preliminary assessment commonly made in suspension orders. See, e. g., the suspension orders quoted in Naph-Sol Refining Co. v. United States, 269 F. Supp. 530, 531; Oscar Mayer & Co. v. United States, 268 F. Supp. 977, 978-979. It did not represent a final determination by the Commission that any particular rate was just and reasonable. Indeed the Commission made it clear in its February 1 order that the surcharge was not considered a prescribed rate within the meaning of Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370 , and was subject to complaint and investigation under the Act.
[ Footnote 17 ] An alternative ground for avoiding the Arrow decision, which was suggested but not relied on by the District Court, was that the surcharge here was an "agency-made" rate, not a "carrier-made" rate. Moss v. CAB, 430 F.2d 891, which was cited by the court is, however, plainly inapposite. There the CAB suspended the rates proposed by the carriers, but suggested in their place "a complete and innovative scheme for setting all passenger rates for the continental United States." Id., at 899. It was clear that when the carriers filed the rates suggested by the Board they would not be suspended. "Even a cursory reading of the order makes it clear that the Board told the carriers what rates to file; it set forth a step-by-step formula requiring major changes in rate-making practices and in rates which it expected the carriers to adopt." Id., at 899-900. Here, by contrast, the level and structure of the rates were proposed entirely by the carriers. While the Commission suggested an expiration date for the surcharge, this was simply to make the surcharge expire when the general selective increases went into effect. This expiration date and the other standard conditions attached to the Commission's refusal to suspend the surcharge did not, in any meaningful sense, transform the carrier-made rate into a Commission-made rate.
[ Footnote 18 ] See n. 8, supra.
[ Footnote 19 ] See Greene County Planning Board v. FPC, 455 F.2d 412, 420; Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S. App. D.C. 33, 43, 449 F.2d 1109, 1119; City of New York v. United States, 337 F. Supp. 150, 160; Cohen v. Price Comm'n, 337 F. Supp. 1236, 1241.
[ Footnote 20 ] The argument that NEPA implicitly restored to the courts the injunctive power that 15 (7) had divested is similar to a contention rejected in Arrow itself. There the petitioners claimed that congressional adoption of the National Transportation Policy, 54 Stat. 899, had implicitly altered 15 (7). They claimed that the proposed new railroad rates would drive the barge lines out of existence, contrary to the congressional declaration of concern for the protection of water carriers threatened by rail competition. The Court concluded that "nothing in the National Transportation Policy, enacted many years after . . . 15 (7), indicates that Congress intended to revive a judicial power which . . . was extinguished when the suspension power was vested in the Commission." Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 673 . In addition, the Court noted that, as is also true with NEPA, the mandate was directed not to the courts but to the Commission. There is nothing about NEPA that makes it any more amenable for finding an implicit amendment of 15 (7), than the National Transportation Policy was.
[ Footnote 21 ] Indeed Calvert Cliffs' indicated that the requirements of 102 of NEPA, see n. 8. supra, did not have to be complied with, if such compliance was precluded by another statutory provision. 146 U.S. App. D.C., at 39, 449 F.2d, at 1115. And Committee for Nuclear Responsibility, in another context, endorsed a principle, equally applicable here, that "repeal by implication is disfavored." 149 U.S. App. D.C. 380, 382, 463 F.2d 783, 785.
[ Footnote 22 ] In view of our conclusion that there was no power to grant the preliminary injunction, it is unnecessary for us to reach the other questions posed by the parties. For example, the Government and the railroads urge that, because of the pressures of time, an environmental impact statement is not required at the suspension stage of a rate proceeding, and, in any event, a decision by the Commission whether or not to suspend rates is not subject to judicial review. See Port of New York Authority v. United States, 451 F.2d 783; Oscar Mayer & Co. v. United States, 268 F. Supp. 977; M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573; Freeport Sulphur Co. v. United States, 199 F. Supp. 913; Luckenbach S. S. Co. v. United States, 179 F. Supp. 605; Carlsen v. United States, 107 F. Supp. 398. The appellees in turn contend that some compliance with NEPA is possible at the suspension stage, and that such compliance is required if the statute is to be enforced "to the fullest extent possible." See 42 U.S.C. 4332. And they urge that there is, or should be, an exception to the general principle of nonreviewability of suspension decisions for those cases where the Commission has acted beyond its statutory authority, or in violation of a clear statutory command or a procedural requirement, a standard that the appellees view as broad enough to encompass [412 U.S. 669, 699] alleged noncompliance with NEPA. See Naph-Sol Refining Co. v. United States, 269 F. Supp. 530, 532; Oscar Mayer & Co. v. United States, supra, at 982 (Doyle, J., concurring); Long Island R. Co. v. United States, 193 F. Supp. 795. We express no view on any of these issues.
MR. JUSTICE DOUGLAS, dissenting in part.
8 I
These cases present important environmental problems. They concern ratemaking for the shipment of [412 U.S. 669, 700] litter for recycling. Paper, glass, and metals are the main items in today's garbage. 1 As indicated by the Bureau of Mines in Appendix I to this opinion. America's method of disposing of garbage is either to use it for landfill or to put it first through incinerators and then to bury the residue. Sorting and recycling have several environmental impacts: (1) reduction in the use of incinerators lessens air pollution; (2) establishing or encouraging removal of litter from the landscape; (3) recycling saves both renewable and nonrenewable resources. As respects the last, the tons of paper that are recycled, rather than burned, can be translated into the number of standing trees that need not be cut for pulp the next year; the metals recycled protect our remaining non-renewable supplies of ore, and so on.
Rates fixed so as to encourage vast shipments of litter are, therefore, perhaps the most immediate and dramatic illustration of a policy which will encourage protection [412 U.S. 669, 701] of the environment against several erosive conditions. 2 I would, therefore, affirm the eminently responsible decision of the District Court. 346 F. Supp. 189.
The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. 4321 et seq., declares a congressional policy
"which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. 4321.
That broad policy is further expounded in 4331 (b) to include, inter alia, the objective that "the Nation may . . . (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . . and (6) enhance the quality of renewable resources and . . . depletable resources." [412 U.S. 669, 702]
The Government urges that appellees do not have standing to challenge the administrative determination of railroad freight rate increases. SCRAP alleged in its amended complaint that its members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of waste recycling in the United States, and made those products, which were in fact manufactured from the waste materials after the rate increase, more expensive in the marketplace. In addition, SCRAP alleged that each of its members in fact used the "forests, rivers, streams, mountains, and other natural resources . . ." for recreational purposes, and these uses were adversely affected because the Commission's rate increases discourage the reuse of recyclable commodities, such as bottles and cans, and encourage the depletion of natural resources.
In Sierra Club v. Morton, 405 U.S. 727, 734 , this Court stated that, "We do not question that [environmental] harm may amount to an `injury in fact' sufficient to lay the basis for standing under . . . the APA [5 U.S.C. 702]. Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." The members of SCRAP have clearly alleged an "injury in fact" to the environment and to their own personal continued use of it.
"There is nothing unusual or novel in granting the consuming public standing to challenge administrative actions." Office of Communication of United Church of Christ v. FCC, 123 U.S. App. D.C. 328, 359 F.2d 994. This Court has indicated that where "statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action." Data Processing Service v. Camp, 397 U.S. 150, 154 . [412 U.S. 669, 703]
Littering is a commonplace phenomenon that affects every person, almost everywhere. From reports and writings we know that littering defaces mountain trails, alpine meadows, and even our highest peaks. Those in the valleys are often almost inundated with litter. Where a river is polluted and a person is dependent on it for drinking water, I suppose there would not be the slightest doubt that he would have standing in court to present his claim. I also suppose there is not the slightest doubt that where smog settles on a city, any person who must breathe that air or feel the sulphuric acid forming in his eyes, would have standing in court to present his claim. I think it is equally obvious that any resident of an area whose paths are strewn with litter, whose parks, or picnic grounds are defaced by it has standing to tender his complaint to the court. Sierra Club v. Morton, supra, would seem to cover this case, for littering abetted by the failure to recycle would clearly seem to implicate residents to whom "the aesthetic and recreational values of the area" are important. Id., at 735. For the reasons stated in my opinion in Sierra Club v. Morton, supra, I agree with the Court that appellees have standing, but like MR. JUSTICE BLACKMUN, I would not require appellees, in their individual capacity, to prove injury in fact. As MR. JUSTICE BLACKMUN states, it should be sufficient if appellees, "as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact . . . ."
9 II
The Council on Environmental Quality (CEQ), created in the Executive Office of the President, 42 U.S.C. 4342, estimated in 1969 that this Nation produced more than 4.3 billion tons of solid refuse, including about 30 million tons of paper, 30 million tons of industrial fly ash, 15 million tons of scrap metal, 4 million tons of [412 U.S. 669, 704] plastics, 100 million automobile tires, 30 billion bottles, 60 billion cans, and millions of discarded automobiles and appliances. First Annual Report of CEQ, Aug. 1970, pp. 107-113. It reported that while most of the secondary material could be reused as a replacement for virgin material, only a small fraction was recycled. Ibid. One of the reasons for the absence of recycling was the high cost both of collection of the material and the transportation costs. Ibid.
As noted, one of the purposes of the Act was to "enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources." 42 U.S.C. 4331 (b) (6). On October 9, 1970, Chairman Russell Train of CEQ wrote the Interstate Commerce Commission as follows:
"The Council on Environmental Quality is deeply concerned with all facets of environmental quality. Solid waste disposal is one important aspect of the total pollution problem, and recycling is a new and desirable alternative to solid waste disposal which the Council strongly supports. The degree to which this technique will be used depends almost entirely on economics. Transportation costs, to the degree they increase secondary or scrap materials costs compared to the raw materials with which they compete, act as a disincentive to recycling. The Council believes that several rail haul costs biases currently exist and would like to discuss these cases with you. . . . In general, across-the-board percentage increases only widen existing price biases against secondary materials. Also, these increases raise the costs of doing business which can hinder the salvage and reclamation industry.
"In light of the President's concern with environmental quality, the growing problems of solid waste [412 U.S. 669, 705] and the importance of recycling to alleviating them, I would like to express the Council's hope that the Interstate Commerce Commission's actions on the key issue of scrap material transportation rates will be consistent with the Nation's environmental quality goals." App. 68.
In December 1971 substantially all the railroads filed with the Commission a request to impose a 2.5% surcharge on virtually all freight. The procedural details which followed are not presently material. Suffice it to say that shippers of recyclable materials submitted verified statements in support of their view that rate increases would intensify the disincentives to shipment and use of recyclable materials. Thus the Institute for Scrap Iron and Steel submitted a study showing:
"(1) Present scrap markets are retarded because of transport rates which encourage the usage of iron ore. (2) Future scrap markets are being affected because new investment that would logically be directed to scrap-intensive steelmaking is diverted because of the existing freight rate structure to ore-intensive steelmaking. (3) Iron ore (a limited domestic natural resource) is being exploited when it can and should be conserved. (4) Some scrap iron that should be recycled is unable to move, thus the environment is despoiled by unnecessary accumulations of solid metallic waste." T. Barnes, Impact of Railroad Freight Rates on the Recycling of Ferrous Scrap (Jan. 14, 1972).
The Commission instituted a proceeding concerning the guidelines which environmental impact statements required under the Act should follow. 339 I. C. C. 508. A spokesman for the eastern railroads filed an impact statement which said that "any possible adverse environmental impact in the form of reduced movements of commodities [412 U.S. 669, 706] by rail will come only if we fail to provide adequate and efficient service" and that the need of the railroads to that end was for increased revenues. Appellees filed a protest and a request for a suspension of the proposed surcharge alleging that the present railroad rate structure discourages the movement of "recyclable" goods and that the surcharge would further discourage recycling.
The Commission, allowing the surcharge for a limited period, found that it would "have no significant adverse effect in the movement of traffic by railway or on the quality of the human environment" within the meaning of the 1969 Act. See 340 I. C. C. 358; 341 I. C. C. 287. Chairman Train of CEQ protested to the Commission on October 30, 1972:
"It is understandable that difficulties will be encountered in quantifying the environmental consequences of an incremental freight rate increase on recyclable materials. In our view, however, these consequences must be assessed in the light of the rate disparity between secondary and primary materials that gives rise to the problem in the first place. This disparity is a matter of an entirely different magnitude, calling for a thorough environmental assessment as a precondition to determining whether subsequent incremental increases require additional environmental impact statements. . . . Clearly at some point increases which might be individually `insignificant' become cumulatively `significant.' In addition, the claim that freight rates on recycled products must be increased to respond to `emergency' revenue needs pending completion of the required, overall environmental evaluation, loses much of its force as months turn into years and the basic investigation remains uncompleted. Finally, even the `emergency' argument itself, however legitimate, in [412 U.S. 669, 707] no way forecloses the consideration of alternatives which would both meet revenue needs and at the same time avoid further potential environmental damage while the basic rate structure issue is being resolved. Alternatives of this sort were, in fact, suggested in the partial dissenting opinions of Commissioners Brown and Deason (who would have denied approval of increases for recyclable commodities), with no indication in the Commission's majority report that such measures would not have been sufficient to meet the revenue needs relied on to justify the rate increases. . . . In summary, the Council feels that the basic environmental issues related to the existing freight rate structure and changes thereto, must be evaluated in a logical, analytical and timely fashion in compliance with the requirements of the National Environmental Policy Act. The Commission's actions to date appear to be inconsistent with the objectives of NEPA, and the analyses undertaken to date by the Commission appear to offer an inadequate basis from which to draw conclusions concerning the impact of freight rates on recycling and environmental quality. Our staff is available to discuss the NEPA procedural issues as well as to assist in structuring the analytical work required to assess adequately the environmental impact of freight rates." 3 App. 87-89. [412 U.S. 669, 708]
The three-judge District Court held that the conclusion of the Commission that the rate increase would have "no significant adverse effect" on the environment within the meaning of EPA was "transparent" and "a ruse." 346 F. Supp., at 200-201. This leads to an analysis of 102 of NEPA. 4
That section is directed to "all agencies of the Federal Government," which of course includes the Interstate Commerce Commission. It directs the agency to interpret and administer "the policies, regulations, and public laws" which it administers "to the fullest extent possible" in accordance with the policies of EPA. It directs the agency 5 to include in "major Federal actions significantly affecting the quality of the human environment" a detailed statement "by the responsible official on - (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship [412 U.S. 669, 709] between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, . . . and shall accompany the proposal through the existing agency review processes." 83 Stat. 853.
Rates affecting litter, like rates affecting other commodities, obviously are relevant to the ease and expedition with which it will be transported. To get the litter to appropriate recycling plants in the quantities needed to protect our fast depleting forests and our non-renewable resources 6 and to relieve our landscape of the litter that plagues us may need special incentive rates.
The report, H. R. Conf. Rep. No. 91-765, makes clear that no agency of the Federal Government is exempt and that each should comply unless existing law applicable to the agency "expressly prohibits or makes full compliance [412 U.S. 669, 710] with one of the directives impossible." The report states:
"The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. Thus, it is the intent of the conferees that the provision `to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section `to the fullest extent possible' under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance." Id., at 9-10.
The District Court, acting responsibly in light of the broad and clear-cut policy of the Act concluded that it sets a "`high standard'" for federal agencies, that there is no "`escape hatch for footdragging agencies,'" that the Act does not make the preparation and use of these impact statements "`discretionary,'" that Congress did not intend that this Act be "`a paper tiger.'" 346 F. Supp., at 199. 7 [412 U.S. 669, 711]
Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 , does not preclude review here. In Arrow there were rates which the Commission had the power to suspend but had not suspended. The power of suspension was entrusted to the Commission only; and we held that the courts should not intrude when the Commission has not acted. Here the Commission has acted; it has found that "the increases here proposed are just and reasonable, that the revenues derived therefrom will result in earnings [412 U.S. 669, 712] and rates of return . . . not in excess of that required to enable" the carriers "to render adequate and efficient transportation at the lowest cost consistent with the furnishing of such service." Ex parte 281, Order of Feb. 1, 1972 (unreported). The Commission said it was not prescribing rates, though it attached conditions on approval of the rates without suspension. It made clear it would suspend the new rates if the conditions were not added. As stated by the three-judge court: "A suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates." 346 F. Supp., at 197.
Moreover, as the three-judge court held and as Judge Friendly observed in City of New York v. United States, 337 F. Supp. 150, 164. "NEPA is a new and unusual statute imposing substantive duties which overlie those imposed on an agency by the statute or statutes for which it has jurisdictional responsibility."
The Court today greatly weakens NEPA in a crucially important segment of the federal environmental field. Movement of litter to recycling plants 8 is critically important, as Chairman Train makes abundantly clear. The alternative is to leave it underfoot or to cart it off as garbage to incinerators that pollute the air or to landfills that are getting more and more difficult to find. 9 We know that recycled paper, recycled copper, recycled [412 U.S. 669, 713] iron, and recycled glass are practical. The Federal Bureau of Mines in its pilot plant at Edmonston, Maryland, boasts that "urban ore," as it calls this debris, costs about $3 a ton and recycled is worth $11 a ton. We know that we deal here with nonrenewable resources. We are told that recycling paper saves thousands of acres of trees a year. 10
Under the Act, the appraisal by the Council on Environmental Quality of which Russell Train is the chairman is a weighty one, for under 204 of the Act it has the responsibility "to appraise the various programs and activities of the Federal Government" in light of the policy of the Act and "to develop and recommend . . . national policies to foster and promote the improvement of environmental quality." 83 Stat. 855; 42 U.S.C. 4344 (3), (4). CEQ is, in other words, the expert ombudsman in the environmental area. [412 U.S. 669, 714]
The apparent tendency among federal agencies, Congressman Dingell says, 11 is to decide first what they want to do and then prepare an impact statement as an apologia for what they have done. That puts the cart before the horse. That is what the Commission did here. But that is to adopt "an excessively narrow construction" of its statutory power "to avoid compliance" with the new environmental standards - all as condemned in the Conference report, supra, at 10. That is to say, environmental considerations are, so far as possible, to shape all agency policies and decisions.
These cases are, indeed, Exhibit A of the current practice of federal agencies to undermine the policy announced by Congress in NEPA. Rail rates were long discriminatory in retarding the industrial development of the South. New York v. United States, 331 U.S. 284 . The present rates are arguably discriminatory against the removal of the litter which is about to engulf us. The wisdom of Chairman Train, rather than the technical maneuvers of the Commission, should be our guide.
I would affirm the judgment of the District Court.
APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART
The Bureau of Mines had at Edmonston, Maryland, for several years an incinerator residue processing plant on the basis of which Lowell, Massachusetts, instituted its Resource Recovery Project.
The Edmonston project is now engaged in recycling of raw waste and the following is the Bureau's description of the nature and scope of that project. [412 U.S. 669, 715]
FACT SHEET
Edmonston (Md.) Solid Waste Recycling Project Bureau of Mines
DEPARTMENT OF THE INTERIOR
An important part of the solid waste utilization research carried on by the Bureau of Mines is to develop methods and processes for recycling mineral materials present in urban refuse. Engineers from the Bureau's College Park (Md.) Metallurgy Research Center operate a pilot plant at Edmonston, Maryland, where they reclaim ferrous metals, nonferrous metals, glass, plastics, and paper from raw unburned refuse. The following facts are pertinent to the research underway at the Edmonston pilot plant.
XXX - 100 pounds of typical municipal refuse contains:
36.6 pounds of paper and cardboard; 20.2 pounds of garbage; 8.4 pounds of metal; 8.5 pounds of glass; 17.4 pounds of leaves, grass, hedge clippings and tree prunings; 2.6 pounds of scrap wood; 1.1 pound of plastics; and 5.2 pounds of miscellaneous material including leather, rubber, textiles, bricks, stones, and dirt.
XXX - Urban refuse generated in the U.S. in 1972 totaled 300 million tons, or the equivalent of more than 8 pounds daily for every man, woman, and child.
XXX - Only 220 million tons of municipal refuse was regularly collected by public agencies and private firms. The remainder (80 million tons) was abandoned, dumped at the point of origin, or hauled to uncontrolled disposal sites.
XXX - The volume of municipal refuse accumulating in the U.S. in a single year would cover an area half the size of the State of Connecticut (2,500 sq. mi.) with a layer of refuse 1 foot deep. This refuse contains some 12 million tons of iron and steel, 13 million tons of glass, and over a million tons of aluminum, zinc, lead, tin, and copper.
XXX - Collecting and disposing of refuse costs cities an average of $23 per ton ($18, for collection and $5, for disposal). New York City, at a cost of $40 per ton, spends almost a million dollars each day to collect and dispose of solid waste. Total U.S. bill runs about $6 billion annually.
XXX - Most municipal refuse is disposed of by dumping, landfill, or incineration. About 30 million tons of municipal refuse is [412 U.S. 669, 716] burned annually in more than 300 municipal incinerators. These incinerators generate 7.5 million tons of residues, which are then buried. The process developed by the Bureau to reclaim the values from incinerator residues has attracted worldwide attention. A commercial size plant of this type will soon be under construction in Lowell, Massachusetts, with seventy-five percent of the $3.2 million required, being provided by the Environmental Protection Agency.
XXX - Successful reclamation of mineral values from incinerator residues at the Bureau's pilot plant prompted research to save also that part of municipal refuse that is now being lost during burning. This would reduce the need for building more municipal incinerators, saving their construction and operating costs, and would bring income from salvaged paper and plastics as well as metals and glass. It would also eliminate air pollution problems connected with incineration.
XXX - Equipment for mechanical separation of metals, glass, paper, and plastics from municipal refuse before incineration has been assembled at Edmonston. The process involves coarse shredding of the refuse, followed with air classification, magnetic separation, screening, optical sorting, electrostatic separation, and gravity concentration - all proven methods used in the minerals industries.
XXX - Other refuse recycling schemes have been proposed and some are already under development. The process developed by the Bureau is unique in the following major respects: (1) it is the only process that embodies a complete system, (2) it is the only process capable of capturing and concentrating putrescibles and glass, (3) it is the only process that produces a tin can product suitable for detinning, (4) it is the only process capable of accepting extremely massive pieces of metal, (5) it is the only process that can successfully separate plastics and paper, and (6) energy requirements for the Bureau's process are by far the least of all proposed processes.
XXX - A plant processing 1,000 tons of raw refuse per day could be expected to reclaim each day enough ferrous metal to make all the iron and steel parts for more than 55 4-door sedans.
XXX - About 36 billion bottles are discarded each year in the U.S. as solid waste. Each American discards a glass bottle on the average of about one every two days. The average returnable beer bottle used to make 31 round trips from the brewery, to the consumer, and back to the brewery. The average is now [412 U.S. 669, 717] 19 trips. In some cities, it is only 4. People are discriminating less between returnable and non-returnable bottles.
XXX - Glass reclaimed from raw refuse can be used in making new glass, or for such salable products as building bricks, mineral wool for insulation, and road surfacing (when ground and mixed with asphalt).
XXX - Aluminum present in refuse in the form of cans alone amounts to 10 percent of the total primary production. This metal together with other aluminum recovered from refuse would find a ready market at existing secondary smelters for conversion to high grade casting alloys.
XXX - The other heavy nonferrous metals could be used readily in producing brass ingot or the mixture could be further refined and separated into the constituent metals.
XXX - The rate at which we generate refuse is growing so fast that within 20 years, even if we are able to recycle 70 percent of our solid wastes our needs for landfill space will remain the same. And landfill space is, even now, becoming harder and harder to find.
[Refuse-disposal and refuse-recovery charts appear on pp. 718 and 719 respectively.] [412 U.S. 669, 718]
[412 U.S. 669, 719]
[412 U.S. 669, 720]
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART
Section 102 of the National Environmental Policy Act, 42 U.S.C. 4332 provides:
4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts.
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall -
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -
(i) the environmental impact of the proposed action, [412 U.S. 669, 721]
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international [412 U.S. 669, 722] cooperation in anticipating and preventing a decline in the quality of mankind's world environment;
(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and
(H) assist the Council on Environmental Quality established by subchapter II of this chapter.
Pub. L. 91-190, Title I, 102, Jan. 1, 1970, 83 Stat. 853.
[ Footnote 1 ] In a Bureau of Mines' survey, it was established that metals and glass account for approximately 75 percent of the weight of the residues in municipal incinerator waste. Economics of Recycling Metals and Minerals from Urban Refuse, Bureau of Mines Technical Progress Report No. 33, p. 2 (Apr. 1971). From these materials, if recycled, familiar products such as bottles, newspapers, iron ingots, paper pulp, fuel oil, and methane gas can be manufactured. In addition, new products are being developed, such as glassphalt for street paving, insulation, glass wool, and glass bricks, in various colors that meet specifications for "severe weather" facing brick. Id., at 7. This project was launched under the Resource Recovery Act of 1970, 84 Stat. 1227, 42 U.S.C. 3251 et seq., under which the Secretary of HEW was authorized to provide technical and financial assistance in planning and developing resource recovery and solid waste disposal programs. For a detailed account of a Resource Recovery Mill see Ross, How to Succeed in Recycling, Environmental Quality Magazine, June 1973, p. 51.
[ Footnote 2 ] The necessity of reasonable transportation rates is even more apparent when it is realized that the volume of residue which is processed at a major recycling plant is between 250 and 1,000 tons per day. (Economics of Recycling Metals and Minerals from Urban Refuse, supra, n. 1, at 1.) Massive bulk transportation is therefore essential to these plant operations. The problem is even more critical in urban areas where there is a high concentration of solid waste being generated and transportation to outlying recycling plants is a major cost factor. In 1968 a national survey found that an average of 8.2 pounds of waste per capita was collected daily in urban areas; this figure has now risen to 9 pounds. If present trends continue, this figure could be as high as 12 pounds in another 10 years. In our urban areas as a whole, the solid waste generated is fast approaching a ton a year for each man, woman, and child. Kramer, Energy Conservation and Waste Recycling, Science and Public Affairs 13, 17 (Apr. 1973).
[ Footnote 3 ] In his report before the Senate, Senator Jackson, one of the three legislators most responsible for NEPA, stated: "To insure that the policies and goals defined in this act are infused into the ongoing programs and actions of the Federal Government, the act also establishes some important `action-forcing' procedures. Section 102 authorizes and directs all Federal agencies, to the fullest extent possible, to administer their existing laws, regulations, and policies in conformance with the policies set forth in this act. It also directs all agencies to assure consideration of the environmental impact of their actions in decision-making. It requires agencies which propose actions to [412 U.S. 669, 708] consult with appropriate Federal and State agencies having jurisdiction or expertise in environmental matters and to include any comments made by those agencies which outline the environmental considerations involved with such proposals. "Taken together, the provisions of section 102 directs [sic] any Federal agency which takes action that it must take into account environmental management and environmental quality considerations." 115 Cong. Rec. 40416 (1969).
[ Footnote 4 ] The totality of 102 is so important to this litigation that I have set it forth in Appendix II to this dissent.
[ Footnote 5 ] Senator Jackson was reported as saying: "We expected Section 102 of the act which requires environmental impact statements and analysis of alternatives for all major federal actions significantly affecting the quality of the human environment to force the agencies to move. . . . We did not anticipate that it would be private parties through the courts that would force the compliance. This is what has made it work." Cahn, Can Federal Law Help Citizens Save Nature's Fragile Beauty?, Christian Science Monitor 12 (Feb. 28, 1973).
[ Footnote 6 ] Waldo E. Smith, of the American Geophysical Union, recently stated: "The total supply of most metals is sharply limited; even now we must dig deeper, go farther, and use lower grade ores. No optimism is justified here. The supply can be extended substantially by intelligent recycling, which should be an important by-product of our cleaning up to maintain a clean environment." Resources and Long-Forecasts, Science and Public Affairs 21, 22 (May 1973).
[ Footnote 7 ] When Congress desires exceptions to be made to the impact statement requirement under the NEPA, express exemption is provided. For example, Pub. Law 92-307, 86 Stat. 191, provides [412 U.S. 669, 711] that the Atomic Energy Commission can grant a temporary operating license for a nuclear power reactor without the completion of an environmental impact statement, if the application for the operating license was filed before September 9, 1971, and the Commission holds a hearing which leads to the findings, among others, that the operation of the facility during the period of the temporary operating license in accordance with its terms and conditions will provide adequate protection of the environment during that period and that the operation of the facility is essential toward insuring the power-generating capacity of a utility system. The Commission is empowered to impose such terms and conditions as it deems necessary, and its decision is subject to judicial review. Some federal agencies are taking affirmative action to promote the purposes of 105. Thus the Securities and Exchange Commission recently adopted amendments to its registration and reporting forms to require more meaningful disclosure of certain items pertaining to the effect on the issuer's business of compliance with federal, state, and local laws and regulations relating to the protection of the environment. The amendments will require as a part of the description of the issuer's business, appropriate disclosures with respect to the material effects which compliance with environmental laws and regulations may have upon the capital expenditures, earnings, and competitive position of the issuer and its subsidiaries. Other amendments describe the extent to which litigation disclosures should contain specific descriptions of environmental proceedings. Securities and Exchange Comm'n Release (Securities Act Rel. No. 5386, Apr. 20, 1973). See Scientists' Institute v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079, holding that an impact statement must be filed for the Atomic Energy Commission's liquid metal fast breeder reactor program.
[ Footnote 8 ] Senator Jackson recently was reported as saying about these impact statements: "We also should be able to get generic environmental impact statements - updated every six months or so - for energy policy, transportation policy, and other major policy decisions." Cahn, supra, n. 5.
[ Footnote 9 ] Most of the Nation's waste is relocated into dumps with only approximately 10% to 15% finding its way into sanitary landfills. Kramer, supra, n. 2, at 17.
[ Footnote 10 ] Congressman Dingell, another main sponsor of NEPA, recently was reported as saying: "The success of the environmental impact statements is not so much that they were used as we intended they should, but that citizens have been able to use the process as a [way] to get into courts. . . . Some agencies are complying poorly. They decide what they are going to do and then write an environmental impact statement to support the decision. That is not what Congress had in mind. I am fearful that we are breeding a race of impact statement writers who put all the right words down but don't really get environmental concerns involved in the decision-making process. The impact statement itself is not important. The important thing is that proper judgments are made reflecting environmental considerations in the decision-making process. The impact statement should be a discipline for this and also a process by which the public can be informed and brought into the decision-making process." Cahn, supra, n. 5. For a recent account of impact statements on transportation problems see Robert Cahn (former member of CEQ), Environmentalists Wary of Transport Trend, Christian Science Monitor 12 (Feb. 28, 1973).
[ Footnote 11 ] See n. 10, supra.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting in part.
I would reverse the judgment of the District Court and order the complaint dismissed because appellees lack standing to bring this suit. None of our cases, including inferences that may be drawn from dicta in Sierra Club v. Morton, 405 U.S. 727 (1972), where we denied standing to petitioner there, are sufficient to confer standing on plaintiffs in circumstances like these. The allegations here do not satisfy the threshold requirement of injury in fact for constituting a justiciable case or controversy. The injury alleged is that the failure of the Commission to suspend a 2.5% freight rate increase may discourage the transportation of recyclable materials, thus retarding the use of recycled materials, causing further consumption of our forests and natural resources (some of which might be taken from the Washington metropolitan area), and resulting in more refuse and undisposable materials to further pollute the environment.
The majority acknowledges that these allegations reflect an "attenuated line of causation," ante, at 688, but is willing to suspend its judgment in the dim hope that proof at trial will in some unexplained way flesh [412 U.S. 669, 723] them out and establish the necessary nexus between these appellees and the across-the-board rate increase they complain of. To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing. They become no more concrete, real, or substantial when it is added that materials will cost more at the marketplace and that somehow the freight rate increase will increase air pollution. Allegations such as these are no more substantial and direct and no more qualify these appellees to litigate than allegations of a taxpayer that governmental expenditures will increase his taxes and have an impact on his pocketbook, Massachusetts v. Mellon, 262 U.S. 447, 486 -489 (1923), or allegations that governmental decisions are offensive to reason or morals. The general "right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted" does not confer standing to litigate in federal courts. Fairchild v. Hughes, 258 U.S. 126, 129 (1922). New York did not have standing to complain when it asserted merely the possible adverse effects of diversion of water from Lake Michigan upon hypothetical power developments in "the indefinite future." New York v. Illinois, 274 U.S. 488, 490 (1927). Assumed potential invasions are insufficient bases for a justiciable case or controversy. Arizona v. California, 283 U.S. 423, 462 (1931). As I see the allegations in this case, they are in reality little different from the general-interest allegations found insufficient and too remote in Sierra Club. If they are sufficient here, we are well on our way to permitting citizens at large to litigate any decisions of the Government which fall in an area of interest to them and with which they disagree.
Assuming, however, that a majority of the Court adheres to the conclusion that a constitutional case or controversy exists in these circumstances and that plaintiffs [412 U.S. 669, 724] may sue, I would agree that the District Court erred in entering an injunction which Congress quite clearly had long since divested it of the power to enter. Accordingly, I join Part III of the Court's opinion. I add only that failure to maintain this country's railroads even in their present anemic condition will guarantee that recyclable materials will stay where they are - far beyond the reach of recycling plants that as a consequence may not be built at all.
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
I fully agree with and join in Part II of the Court's opinion wherein it sustains the District Court's determination that the appellees have standing to challenge the 2.5% interim surcharge on the ground that the Interstate Commerce Commission's order of April 24 permitting the surcharge to take effect was not issued in compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Court goes on, however, to hold in Part III of its opinion that the District Court lacked power to issue a preliminary injunction barring implementation of the surcharge due to the Commission's alleged failure to comply with NEPA in the suspension stage of the rate proceeding. The Court's decision in this respect is, to be sure, a very narrow one; the decision clearly concerns only the scope of remedies available to the District Court in the context of a case of this particular character, 1 that is, an ICC rate suspension case. [412 U.S. 669, 725] The Court specifically refrains from deciding whether or not the Commission's alleged failure to comply with NEPA in the suspension stage is a proper subject for judicial review and, if so, what would constitute adequate compliance with NEPA at that juncture in the administrative process. See ante, at 698-699, n. 22. Nonetheless, I am unable to join the third portion of the Court's opinion, for I am convinced that there is no lack of judicial power to issue a preliminary injunction against the interim surcharge in the context of these cases. I therefore must respectfully dissent from Part III of the Court's opinion.
At the outset, it is essential for purposes of analysis to put the issue upon which the Court disposes of the cases in proper perspective. Since the Court addresses only the issue of the District Court's power to grant preliminary relief, we must, of course, assume for the sake of argument that the issues which the Court does not now reach - namely, whether the procedural requirements of NEPA 2 are applicable at the suspension stage and whether the issue of Commission compliance is a proper one for judicial review 3 - are to be decided in appellees' favor. In addition, we must accept for the present appellees' assertions that the interim surcharge, by raising [412 U.S. 669, 726] the cost of shipping recyclable materials, will further accentuate the allegedly unjustifiable disparity between the cost of shipping those materials and the cost of shipping primary goods, thereby irrationally encouraging the use of primary goods which will lead to a further degradation of our environment. In other words, in considering the question of judicial power, we must accept the correctness of the District Court's determination that there was a "strong likelihood" that the Commission had erred in its conclusion that the interim surcharge "`will have no significant adverse effect on . . . the quality of the human environment within the meaning of the Environmental Policy Act of 1969,'" 346 F. Supp., at 200, 201, a conclusion that had effectively excused the Commission from compliance with the procedural requirements of NEPA in the context of the surcharge, see 42 U.S.C. 4332 (2) (C).
Turning then to the issue of judicial power, it must first be recalled that we deal here with the grant of only a preliminary injunction; the District Court did not permanently enjoin enforcement of the interim surcharge upon determining that the Commission had, in all likelihood, failed to comply with NEPA in the suspension stage. Properly viewed, I think the injunction at issue in this case amounts to nothing more than a legitimate effort by the District Court, following the Commission's refusal to suspend the surcharge, to maintain the status quo pending final judicial determination of the legality of the Commission's action at the suspension stage in light of the requirements of NEPA. And, by now, the equitable power of the federal courts to grant interim injunctive relief pending determination of an appeal is well established. The nature of that power was explored at length by the Court in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942), where it was held that a court of appeals had power, pending determination of an appeal, [412 U.S. 669, 727] to stay the Federal Communications Commission's grant of a construction permit although the Federal Communications Act made no provision for such a stay. Speaking for the Court, Mr. Justice Frankfurter explained:
"No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal, despite anything a court can do. But within these limits it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that as a part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal." Id., at 9-10.
See also FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966); Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 425 (1965).
This Court has consistently adhered to the view that it will find federal courts to have been deprived of their traditional power to stay orders under review only in the face of the clearest possible evidence of a congressional intent to do so. See Scripps-Howard Radio, Inc. v. FCC, supra, at 11, 15. No such clear intent is to be found in the Interstate Commerce Act, at least not with respect to a case such as this where the Commission has already acted on the relevant issue and the issue lies in an area outside the Commission's traditional expertise. 4 In Arrow Transportation Co. v. Southern R. [412 U.S. 669, 728] Co., 372 U.S. 658, 664 (1963), this Court specifically acknowledged that "[i]t cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to [the establishment of suspension powers in the Commission] to suspend proposed rates." The Arrow Court was asked to extend by injunction the statutory seven-month suspension period, see 49 U.S.C. 15 (7), because the Commission had not reached a decision on the lawfulness of the proposed rates at the end of the suspension period and the rail carriers, following a period of voluntary suspension, were threatening to implement the rate change without awaiting final agency action. Despite the ambiguity of the legislative history, the Court, upon careful examination of the character of and reasons for the suspension scheme, concluded that Congress must have intended to deprive the federal courts of the power to suspend rates pending completion of agency action and thus that the traditional equitable powers of the federal courts had been overridden to that extent. But, as detailed consideration of the factors that motivated the decision in Arrow reveals, this litigation presents a significantly different problem.
The Arrow Court felt that an injunction extending the suspension period pending final agency action would involve a serious, unintended intrusion on the primary jurisdiction of the Commission. This problem of primary jurisdiction had two aspects in Arrow. First, where the issue is the reasonableness of proposed rates, an application for an injunction against implementation of [412 U.S. 669, 729] those rates pending final agency action would necessarily require a federal court "to pass before final Commission action upon the question of reasonableness of a rate," 372 U.S., at 671 , thereby providing, in effect, an advisory judicial opinion to the Commission on an issue which Congress intended that the Commission decide in the first instance. Certainly, the Commission's expertise in matters of rail carrier operations and economics is well recognized, and Arrow clearly indicates that the courts should not interfere with the exercise of that expertise. However, the grant of preliminary relief here involves no such interference with the Commission's initial exercise of its particular expertise.
So far as I am aware, the Commission has never been deemed especially expert in matters of environmental policy or impact. 5 It is, of course, true that the Commission must decide in the first instance whether particular proposed action constitutes "major Federal action significantly affecting the quality of the human environment," thus necessitating agency compliance with the detailed requirements of 102 (2) (C) of NEPA, 42 U.S.C. 4332 (2) (C). But that decision had already been made in this case prior to the time when judicial intervention by the District Court was sought - in contrast to the situation in Arrow where the question of the reasonableness of the rates remained unresolved by the Commission. Even assuming that some element of agency expertise is involved in the decision at issue here, the District Court, in granting preliminary relief against the interim surcharge, passed only upon a question of which the Commission had finally disposed, namely, the environmental impact of not suspending the interim surcharge [412 U.S. 669, 730] and of permitting it to take effect at once. Thus, for purposes of the particular issue raised here, the District Court was presented with final agency action 6 and was not in danger of interfering with the Commission's expertise when it stayed the Commission's order pending final determination of the appeals. 7
The other aspect of the problem of primary jurisdiction focused upon in Arrow was the timing of the implementation of new rates. The Court concluded that Congress had intended that the Commission should determine when new rates should take effect. See 372 U.S., at 668 . Insofar as the economic impact of rate increases was concerned, Congress enacted a scheme which permitted the Commission to take into account the interests of both rail carriers and shippers. Thus, Congress recognized that economic necessity might persuade the Commission to permit otherwise questionable rates to go unsuspended while they were being investigated, and, at most, it allowed the Commission to suspend proposed rates for only seven months, see 49 U.S.C. 15 (7). At the same time, Congress attempted to accommodate the economic interests of shippers, for it gave the Commission power, pending final agency action, to require the rail carriers to maintain detailed records of monies received due to the increase and to compel payment of refunds if a rate increase was ultimately found to be unreasonable. 8 See ibid. [412 U.S. 669, 731]
But where does the Interstate Commerce Act make provision for an accounting and "refund" to the people of our Nation for the irreversible ecological damage that results from a rate increase which discriminates unreasonably against recyclable materials and has been allowed to take effect without compliance with the procedural requirements of NEPA? 9 The Court today says that "[t]o allow judicial suspension for noncompliance with NEPA, would disturb the careful balance of interests" struck by Congress in the suspension and refund provisions. Ante, at 697. Yet the simple fact is that in the [412 U.S. 669, 732] carefully designed suspension and refund scheme no balance was struck with respect to the environmental interests that have been recognized by Congress in NEPA since the introduction of the suspension provisions into the Interstate Commerce Act. Under these circumstances, we can hardly infer an intent on the part of Congress to deprive the federal courts of their traditional responsibility, in passing upon a request for equitable relief, to work an accommodation in each particular case of the competing interests of the relevant parties 10 - that is, of a rail carrier's alleged need for increased income that will otherwise be forever lost each day that the new rate is not charged and of the extent of irreversible environmental damage that might result if the rates are not suspended. The District Court, in its effort to preserve the status quo pending final review of the Commission's April 24 order, gave full consideration to the effects on all parties of either granting or denying preliminary relief against the interim surcharge. 11 In then temporarily enjoining the surcharge, I believe that the District Court acted within the scope of its legitimate powers.
To summarize, then, I obviously cannot agree with the Court's assertion that "each of the policies that we identified in Arrow as the basis for 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged." Ante, at 696. In Arrow itself, the Court was at pains to point out that its decision [412 U.S. 669, 733] did not "reflect in any way upon decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels." 372 U.S., at 671n. 22. True, the Court went on to say there that "[s]uch power . . . has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act." Ibid. But the import of that remark must be judged with a full understanding of the factors underlying the Arrow Court's finding of "such a clear congressional purpose." As has been seen, close analysis of those factors identified certainly does not compel extension of the Arrow holding to the request for preliminary injunctive relief in this litigation. 12 The Court would do well to remember [412 U.S. 669, 734] that "[w]here Congress wished to deprive the courts of [their] historic power [to enjoin orders pending review], it knew how to use apt words . . . ." Scripps-Howard Radio, Inc. v. FCC, 316 U.S., at 17 . Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329(1944). Nothing in the language of the Interstate Commerce Act or in the particular structure of that Act or even in our decision in Arrow compels the conclusion that Congress has done so here. I must therefore dissent from the Court's ultimate disposition of these cases.
[ Footnote 1 ] Given that the Court holds only that the District Court lacked power to grant preliminary injunctive relief, it presumably remains open to appellees to challenge the Commission's alleged failure to comply with NEPA in the suspension stage of the proceedings concerning the interim surcharge in an action for declaratory relief. Nor does anything in the Court's opinion today deny to the district [412 U.S. 669, 725] courts power to enjoin the Commission to comply with NEPA in the context of a particular rate proceeding so long as no injunction is issued barring implementation of the rates themselves, cf. Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, post, p. 800.
[ Footnote 2 ] See in particular 102 (2) (C) of the Act, 42 U.S.C. 4332 (2) (C).
[ Footnote 3 ] Cf., e. g., Upper Pecos Assn. v. Stans, 452 F.2d 1233 (CA10 1971), vacated and remanded for consideration of mootness sub nom. Upper Pecos Assn. v. Peterson, 409 U.S. 1021 (1972); Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U.S. App. D.C. 33, 449 F.2d 1109 (1971); City of New York v. United States, 337 F. Supp. 150, 158-160 (EDNY 1972).
[ Footnote 4 ] Thus, I cannot accept the Court's assertion that the question here is "whether in a specific context NEPA sub silentio revived [412 U.S. 669, 728] judicial power that had been explicitly eliminated by Congress." Ante, at 696. That is a question which I do not believe need ever be reached here, for - as shall be seen - Congress has not, to begin with, deprived the federal courts of their traditional equitable powers in the context of these cases.
[ Footnote 5 ] Administrative expertise in such matters is surely lodged with the Environmental Protection Agency and the Council on Environmental Quality.
[ Footnote 6 ] Cf. L. Jaffe, Judicial Control of Administrative Action 688 (1965).
[ Footnote 7 ] Contrast Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, post, p. 800.
[ Footnote 8 ] Moreover, even if the Commission fails to require recordkeeping and the payment of refunds sua sponte, Congress also provided a mechanism by which shippers may initiate an action before the Commission to seek reparations from a carrier on the ground that particular rates are unreasonable. See 49 U.S.C. 13 (1). Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 [412 U.S. 669, 731] (1963), to be sure, did not involve an economic dispute between shippers and rail carriers, but was, instead, an action brought by water carriers which contended that certain challenged decreases in the rates of competing rail carriers were designed to destroy them rather than to reach legitimate economic objectives. Obviously, the refund and reparation provisions of the Interstate Commerce Act were of no more value to the water carriers in Arrow than they are to the nonshipper appellees in this case. But, as the Court pointed out in Arrow, "[c]onflicts over rates between competing carriers were familiar to the Commission long before [the enactment of the suspension provisions] . . . . Indeed, in another provision [namely, 49 U.S.C. 4 (2)] of the very same statute [that established the suspension powers] Congress . . . dealt explicitly with the reduction of rates by railroads competing with water carriers . . . . In addition 8 of the Act, 49 U.S.C. 8, creates a private right of action for damages - based upon conduct violative of the Act - which might be available . . . ." 372 U.S., at 669 . Thus, Congress had taken into account, and had provided for, disputes between competing carriers, as well as between shippers and carriers, in enacting the suspension provisions. The same can hardly be said for conflicts between the environmental policies of NEPA and the Commission's suspension power.
[ Footnote 9 ] Indeed, given the substantial element of public interest at stake in a case such as this, it is appropriate to recall Mr. Justice Stone's oft-quoted admonition: "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Virginian R. Co. v. Systems Federation No. 40, 300 U.S. 515, 552(1937).
[ Footnote 10 ] Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329 -330 (1944).
[ Footnote 11 ] Thus, the District Court, fully recognizing the financial plight of the rail carriers, carefully limited its preliminary injunction to the application of the interim surcharge to recyclable materials, "allowing [the rail carriers] to collect the surcharge on all non-recyclable goods." 346 F. Supp., at 202.
[ Footnote 12 ] The Arrow Court also pointed out that experience with judicial injunctions against rates prior to the establishment of the Commission's suspension powers in 15 (7) had "resulted in disparity of treatment as between different shippers, carriers, and sections of the country, causing in turn `discrimination and hardship to the general public.'" 372 U.S., at 664 . These results were due both to the conflicting views of lower federal courts as to their power to enjoin rates pending agency determination of their lawfulness and conflicting judgments of different courts as to the reasonableness of the same rates. See id., at 663-664. But the danger of conflicting judgments concerning the same rates and unevenhanded treatment of shippers and carriers, merely because of the fortuity of the particular judicial district in which they are located, is not present where, as here, the allegation is that the Commission has failed to follow the requirements of a statute - NEPA - relevant to the exercise of its regulatory jurisdiction and the Commission has, as a consequence, been joined in the suit as a defendant. So long as the Commission has been made a party, it is possible to ensure uniformity of treatment by enjoining the Commission to exercise its suspension powers where a failure to comply with NEPA is believed to exist. This is what the District Court did here when it enjoined the Commission "from permitting . . . the 2.5 per cent surcharge" to be collected by the rail [412 U.S. 669, 734] carriers "pending further order of this court." See Jurisdictional Statement 30a. It may be that the danger of conflicting results where the Commission has not been made a party would warrant a court staying its hand, but that is not a problem here. [412 U.S. 669, 735]
19
Tanner v. Armco Steel Corp., 340 F.Supp. 532 (SD Tex. 1972)
Tanner v. Armco Steel Corporation, 340 F. Supp. 532 (S.D. Tex. 1972)
US District Court for the Southern District of Texas - 340 F. Supp. 532 (S.D. Tex. 1972)
March 8, 1972
[pic]
340 F. Supp. 532 (1972)
1 George N. TANNER, Individually and wife, Stephanie Tanner et al., Plaintiffs,
v.
ARMCO STEEL CORPORATION et al., Defendants.
Civ. A. No. 71-H-1232.
United States District Court, S. D. Texas, Galveston Division.
March 8, 1972.
*533 L. A. Greene, Jr., Houston, Tex., for plaintiffs.
B. D. McKinney, of Baker & Botts, Houston, Tex., for Ethyl Corp., Olin Corp., Phosphate Chemicals, Inc., Reichhold *534 Chemicals, Inc., Rohn & Haas Co., Tenneco Chemicals, Inc. and U. S. Ply-Wood-Champion Papers, Inc., defendants.
Charles L. Chester, of Andrews, Kurth, Campbell & Jones, Houston, Tex., for Armco Steel Corp. and Tenn-Tex Alloy Corp. of Houston, defendants.
William Key Wilde, of Bracewell & Patterson, Houston, Tex., for Parker Brothers & Co., defendant.
Ben H. Rice, III of Vinson, Elkins, Searls & Smith, Houston, Tex., for Crown Central Petroleum Corp., defendant.
John H. Boswell, of Boswell, O'Toole, Davis & Pickering, Houston, Tex., for Lubrizol Corp., defendant.
L. S. Carsey, of Fulbright, Crooker & Jaworski, Houston, Tex., for Merichem Co. and Pennwalt Corp., defendants.
C. E. Nadeau, J. A. Evans, and W. D. Maer, Houston, Tex., for Shell Chemical Corp. and Shell Oil Co., defendants.
2 MEMORANDUM AND ORDER
NOEL, District Judge.
Plaintiffs, residents of Harris County, Texas, bring this action to recover for injuries allegedly sustained as a result of the exposure of their persons and their residence to air pollutants emitted by defendants' petroleum refineries and plants located along the Houston Ship Channel. It is asserted that plaintiff George W. Tanner, as a proximate result of these emissions, has suffered pulmonary damage with consequent medical expenses and loss of income to himself and his family. By way of remedy, it appears from the rather prolix complaint that plaintiffs pray "to recover their damages from the Defendants, jointly and severally, for their personal injuries, past and future medical expenses, pain and suffering, loss of services, mental anguish, loss of support, damages to the homestead and lands of the Tanners, general damages, puntative (sic) damages and all other damages allowed by law, in the combined amount of FIVE MILLION DOLLARS."
As this action between private parties would appear to sound in tort, and as diversity of citizenship has not been pleaded, the threshold question of federal jurisdiction immediately arises. Arguing that such jurisdiction is lacking and that a claim upon which relief can be granted has not been stated, sixteen defendants have filed motions to dismiss. Rule 12(b) (1) and (6), Fed.R.Civ.P. Defendant Crown Central Petroleum Corporation has taken the same position by way of answer. Plaintiffs have responded in opposition to dismissal. To the extent that plaintiffs' response, accompanied by affidavit, has introduced material dehors the pleadings, the motions shall be treated as prayers for summary judgment, as authorized by Rule 12(b), Fed.R.Civ.P. The issues have been thoroughly briefed and the matter is ripe for disposition.
In their jurisdictional statement, citing a potpourri of federal constitutional and statutory provisions, plaintiffs purport to construct a claim upon the following foundations: (1) the Constitution of the United States "in its entirety"; (2) the Due Process Clause of the Fifth Amendment; (3) the Ninth Amendment; (4) the Fourteenth Amendment in conjunction with the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343; (5) the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.; (6) and, finally, the general federal question jurisdictional statute, 28 U.S.C. § 1331 (a). All of the foregoing shall now be considered seriatim.
I. The allusion in the complaint to the Federal Constitution "in its entirety" is not a plain statement of the ground upon which the Court's jurisdiction depends, and is therefore insufficient pleading under Rule 8(a) (1), Fed.R.Civ. P.
II. Plaintiffs next assert that their claim arises under the Due Process Clause of the Fifth Amendment to the Federal Constitution, and is therefore cognizable in this Court. The contention is without merit. It is well settled that *535 the Fifth Amendment operates only as a restraint upon the National Government and upon the States through the Fourteenth Amendment, but is not directed against the actions of private individuals such as defendants. Talton v. Mayes, 163 U.S. 376, 16 S. Ct. 986, 41 L. Ed. 196 (1896); Corrigan v. Buckley, 271 U.S. 323, 46 S. Ct. 521, 70 L. Ed. 969 (1926); Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). It is not alleged in the instant complaint that the Federal Government is involved in the activity complained of. In their responsive brief, plaintiffs do assert that the Federal Government has advanced funds to the State of Texas and City of Houston for the purpose of antipollution efforts. The relevance of this is not immediately apparent; however, taken as true, it clearly does not amount to federal complicity or participation in the alleged transgressions of the defendant private corporations, and it just as clearly will not support a Fifth Amendment claim.
III. Plaintiffs next seek solace in the Ninth Amendment, and concede on brief that this is a pioneering enterprise:
This case is believed to be unique in that counsel for the Tanners is not aware of any other cases that have sought damages for personal injuries caused by the air pollution in the United States District Courts based upon the premise that the right to a healthy and clean environment is at the very foundation of this nation and guaranteed by the laws and Constitution of the United States. Plaintiffs maintain that their right not to be personally injured by the actions of the Defendants and their right to non-interference with their privacy and the air that they breathe are protected by the Ninth Amendment.
Responsive Brief of Plaintiffs, at p. 1.
Since its promulgation, the Ninth Amendment has lain largely quiescent, its most ambitious sortie being in the form of a concurrence in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (concurring opinion of Mr. Justice Goldberg). The parties have cited and the Court has found no reported case in which the Ninth Amendment has been construed to embrace the rights here asserted. Such a construction would be ahistorical and would represent essentially a policy decision. In effect, plaintiffs invite this Court to enact a law. Since our system reserves to the legislative branch the task of legislating, this Court must decline the invitation. The Ninth Amendment, through its "penumbra" or otherwise, embodies no legally assertable right to a healthful environment. Environmental Defense Fund, Inc. v. Corp of Engineers, 325 F. Supp. 728, 739 (E.D.Ark.1971); cf. Red Lion Broadcasting Co. v. Federal Communications Commission, 127 U.S. App.D.C. 129, 381 F.2d 908, 925 (1967), aff'd 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1967).
IV. Plaintiffs also contend that this action is entertainable by reason of the Fourteenth Amendment in conjunction with the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343. The Supreme Court of the United States, in Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), has recently defined plaintiffs' task:
The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law".
398 U.S. at 150, 90 S. Ct. at 1604. Therefore, it is clear that a sufficiently stated claim under section 1983 must embrace two elements properly alleged: (1) a constitutional deprivation, and (2) state action. On brief, all parties have devoted *536 considerable attention to state action, the second requisite.
This Court is persuaded that plaintiffs have not alleged the quantum of state or municipal regulatory involvement necessary to clothe defendants with the mantle of the State for the purposes of Section 1983. See T. W. Guthrie v. Alabama By-Products Company, 328 F. Supp. 1140 (N.D.Ala.1971), and cases cited therein at 1143, n. 7. However, it is unnecessary to dwell upon the point at length. For, assuming arguendo that state action were present, the fact remains that the first requisite of a Section 1983 suit constitutional deprivation has not been satisfied.
Taking as true all factual allegations in the complaint, plaintiffs have failed to allege a violation by defendants of any judicially cognizable federal constitutional right which would entitle them to the relief sought. Once again, the parties have cited and the Court has found no reported case which persuasively suggests that the Fourteenth Amendment is susceptible to the interpretation urged. Although there has been something of a boom recently in what Judge Seals of this Court has described as "grandiose claims of the right of the general populace to enjoy a decent environment", Bass Anglers Sportsman's Society of America v. United States Plywood-Champion Papers, Inc., 324 F. Supp. 302, 303 (S.D. Tex.1971), such claims "have been more successful in theory than in operation." P. D. Rheingold, A Primer on Environmental Litigation, 38 Brooklyn L.Rev. 113, 126 (1971). In view of the dearth of supportive authority, this Court must decline "to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2nd Cir. 1943) (L. Hand, J., dissenting), cf. Environmental Defense Fund, Inc. v. Corps of Engineers, supra, 325 F. Supp. at 739.
First, there is not a scintilla of persuasive content in the words, origin, or historical setting of the Fourteenth Amendment to support the assertion that environmental rights were to be accorded its protection. To perceive such content in the Amendment would be to turn somersaults with history. For, as the Congressional sponsor of a proposed federal environmental amendment recently observed:
We are frank to say that such a provision to the Constitution would have been meaningless to those attending the Constitutional Convention in Philadelphia almost 200 years ago. Indeed, this amendment would have been altogether unpersuasive twenty years ago, although the handwriting was then visible on the wall, if one cared to look for it.
Remarks of Representative Richard L. Ottinger of New York, Cong. Rec. 17116 (1968), quoted at R. H. Platt, Toward Constitutional Recognition of the Environment, 56 A.B.A.J. 1061 (1970).
Second, it is apparent that nowhere in the Fourteenth Amendment or its "incorporated" amendments can be found the decisional standards to guide a court in determining whether the plaintiffs' hypothetical environmental rights have been infringed, and, if so, what remedies are to be fashioned. Such a task would be difficult enough with the guidance of a statute, but to undertake it in the complete absence of statutory standards would be simply to ignore the limitations of judicial decisionmaking.
Third, from an institutional viewpoint, the judicial process, through constitutional litigation, is peculiarly ill-suited to solving problems of environmental control. Because such problems frequently call for the delicate balancing of competing social interests, as well as the application of specialized expertise, it would appear that their resolution is best consigned initially to the legislative and administrative processes. Furthermore, the inevitable trade-off between economic and ecological values presents a subject matter which is inherently political, and which is far too serious to relegate to the ad hoc process of "government by *537 lawsuit" in the midst of a statutory vacuum.
Finally, to the extent that an environmental controversy such as this is presently justiciable, it is within the province of the law of torts, to wit: nuisance. Cf. Trueheart v. Parker, 257 S.W. 640 (Tex.Civ.App. San Antonio 1923, no writ); King v. Columbian Carbon Co., 152 F.2d 636 (5th Cir. 1945). There would seem little good reason in law or policy to conjure with the Fourteenth Amendment and Section 1983 for the purpose of producing the wholesale transformation of state tort suits into federal cases. In any event, if such a result is deemed desirable in order to cope with pollution on a nationwide scale, then it should be accomplished by Congress through legislation, and not by the courts through jurisdictional alchemy. Therefore, this Court must follow Guthrie v. Alabama By-Products Co., supra, where the Court, in dismissing a similar pollution suit, observed that several bills have been introduced to challenge conduct alleged to result in environmental pollution. From this, Chief Judge Lynne of the Northern District of Alabama quite reasonably concluded that:
Though this circumstance may be only faintly persuasive, it does indicate that the sponsors of these bills believe that the right to maintain such suits in federal court is not provided by existing legislation. This Court is firmly of the opinion that if plaintiffs are to be allowed to bring private damage suits for injuries traditionally local in nature and already covered by local statutory and common law, additional federal legislation is imperative. Such authority cannot be found in the existing law.
328 F. Supp. at 1149.
For the foregoing reasons, this Court holds that no legally enforceable right to a healthful environment, giving rise to an action for damages, is guaranteed by the Fourteenth Amendment or any other provision of the Federal Constitution. As the United States Supreme Court recently observed in rejecting a similarly imaginative constitutional claim, "the Constitution does not provide judicial remedies for every social and economic ill." Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 874, 31 L. Ed. 2d 36 (1972). It follows, of course, that a claim under Section 1983 has not been stated and subject matter jurisdiction under 28 U.S.C. § 1343 has not been invoked.
V. Next, plaintiffs urge this Court to find an implied civil damage remedy in certain provisions of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. In this, the Court is again apparently invited to break new ground, for no case has been cited in which such a remedy was inferred. The absence of such authority is understandable. By its terms, the statute is directed only to the agencies and instrumentalities of the Federal Government, with a primary purpose being full disclosure of the environmental consequences of federal governmental activities. It follows that plaintiffs may derive from the statute no private cause of action against these private defendants. For the sake of thoroughness, however, each section of the Act cited by plaintiffs shall be separately considered.
(a) As to 42 U.S.C. § 4321, this is merely a preamble to the Act, in which Congress declares its purpose to encourage harmony between man and his environment, to promote efforts for the prevention of environmental damage, to enrich man's understanding of his environment, and to establish a Council on Environmental Quality. In so doing, Congress said nothing of rights or remedies. As it embodies no prescriptive command and creates no duties or liabilities, this section of the statute clearly cannot be made to embrace a private cause of action. Compare: J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964); Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874 (1916); Kardon *538 v. National Gypsum Co., 69 F. Supp. 512 (E.D.Pa.1946).
(b) In their jurisdictional statement, plaintiffs also cite 42 U.S.C. § 4331(a) and (b) as supportive of this action. There is contrary authority on the point, and we need look no further than Environmental Defense Fund, Inc. v. Corps of Engineers, supra, in which the Court held that these sections of the statute create no substantive private rights. The well-reasoned opinion deserves quotation at some length:
Plaintiffs contend that NEPA creates some "substantive" rights in addition to its procedural requirements. They base this contention on the language contained in § 101 of the Act. Although the Court may be oversimplifying their position in this respect, essentially they claim that the Act creates rights in the plaintiffs and others to "safe, healthful, productive, and esthetically and culturally pleasing surroundings;" and to "an environment which supports diversity and variety of individual choice," and "the widest range of beneficial values." See § 101(b). The Court disagrees.
Section 101(a) takes note of the environmental problems facing the nation and then declares it to be the policy of the federal government to use all practical means "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." In order to carry out this policy, § 101(b) declares it to be the "continuing responsibility of the Federal Government to use all practicable means * * * to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may " attain certain stated objectives, including those, quoted above, which plaintiff contend create substantive rights.
The Act appears to reflect a compromise which, in the opinion of the Court, falls short of creating the type of "substantive rights" claimed by the plaintiffs. Apparently the sponsors could obtain agreement only upon an Act which declared the national environmental policy. This represents a giant step, but just a step. It is true that the Act required the government "to improve and coordinate Federal plans, functions, programs, and resources," but it does not purport to vest in the plaintiff, or anyone else, a "right" to the type of environment envisioned therein.
In the instant case it is clear that the damming of the Cossatot will reduce "diversity and variety of individual choice." It is apparently plaintiffs' view that upon the basis of such a finding the Court would have the power, and duty, ultimately and finally to prohibit the construction of the dam across the Cossatot. No reasonable interpretation of the Act would permit this conclusion. If the Congress had intended to leave it to the courts to determine such matters; if, indeed, it had intended to give up its own prerogatives and those of the executive agencies in this respect, it certainly would have used explicit language to accomplish such a far-reaching objective.
325 F. Supp. at 755 (emphasis added). Therefore, as Sections 4331(a) and (b) create no private rights, they obviously imply no private remedies.
(c) Plaintiffs' reliance upon 42 U.S.C. § 4331(c) is similarly misplaced. This section provides only that "(t)he Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment." Like the language of Section 4321, these words are almost precatory in nature. Had the Congress intended to create a positive and enforceable legal right or duty, it would have said so, and would not have limited itself to words of entreaty. In the absence of any clear statement, this Court must assume that no such intention *539 existed. Although such a reading stands by itself as the only plausible construction, it is interesting to note that it is supported by the legislative history of the provision in question. Originally, the Senate version, Senate Bill 1075, provided that "(t)he Congress recognizes that each person has a fundamental and inalienable right to a healthful environment. ..." (emphasis added). However, these strong words did not survive the conference committee, where they were deleted lest they be interpreted to create legal consequences which the Congress did not intend. In the words of the Conference Report:
Section 101(c) of the conference substitute states that "Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment". The language of the conference substitute reflects a compromise by the conferees with respect to a provision in the Senate bill (but which was not in the House amendment) which stated that Congress recognizes that "each person has a fundamental and inalienable right to a healthful environment ..." The compromise language was adopted because of doubt on the part of the House conferees with respect to the legal scope of the original Senate provision.
See Conference Report No. 91-765, 1969 U.S.Code Cong. & Admin.News pp. 2767, 2768. This "doubt" was resolved by stripping the Senate bill of the language which might arguably have been construed as creating a legally enforceable right to a "healthful environment". As the Congress took assiduous care to foreclose the possibility of such an interpretation, this Court is obviously powerless to adopt it. From this it follows that no claim upon which relief can be granted has been stated under 42 U.S.C. § 4331(c).
VI. Finally, in their jurisdictional statement, plaintiffs cite 28 U.S.C. § 1331, conferring upon federal district courts original jurisdiction of suits arising under the Constitution, laws, and treaties of the United States. It is well settled that this provision is operative only when "a right of immunity created by the Constitution or laws of the United States [is] an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank of Meridian, 299 U.S. 109, 112, 57 S. Ct. 96, 97, 81 L.Ed 70 (1936). Jurisdiction exists in this Court for the purpose of determining whether a cause of action has been stated. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946). For the reasons expressed previously, plaintiffs have not stated a federal claim upon which relief can be granted. Therefore, the action must be dismissed. Wheeldin v. Wheeler, 373 U.S. 647, 83 S. Ct. 1441, 10 L. Ed. 2d 605 (1963).
Accordingly, for the foregoing reasons, this action must be dismissed because of plaintiffs' failure to state a claim upon which relief can be granted. Rule 12(b) (6), Fed.R.Civ.P.
Judgment shall enter for the defendants.
20. United States v.Riverside Bayview Homes,Inc.,474US121(USSC)
U.S. Supreme Court
United States v. Riverside Bayview, 474 U.S. 121 (1985)
United States v. Riverside Bayview Homes, Inc.
No. 84-701
Argued October 16, 1985
Decided December 4, 1985
474 U.S. 121
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
Syllabus
The Clean Water Act prohibits any discharge of dredged or fill materials into "navigable waters" -- defined as the "waters of the United States" -- unless authorized by a permit issued by the Army Corps of Engineers (Corps). Construing the Act to cover all "freshwater wetlands" that are adjacent to other covered waters, the Corps issued a regulation defining such wetlands as
"those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."
After respondent Riverside Bayview Homes, Inc. (hereafter respondent), began placing fill materials on its property near the shores of Lake St. Clair, Michigan, the Corps filed suit in Federal District Court to enjoin respondent from filling its property without the Corps' permission. Finding that respondent's property was characterized by the presence of vegetation requiring saturated soil conditions for growth, that the source of such soil conditions was ground water, and that the wetland on the property was adjacent to a body of navigable water, the District Court held that the property was wetland subject to the Corps' permit authority. The Court of Appeals reversed, construing the Corps' regulation to exclude from the category of adjacent wetlands -- and hence from that of "waters of the United States" -- wetlands that are not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court took the view that the Corps' authority under the Act and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. Under this construction, it was held that respondent's property was not within the Corps' jurisdiction, because its semi-aquatic characteristics were not the result of frequent flooding by the nearby navigable waters, and that therefore respondent was free to fill the property without obtaining a permit.
Held:
1. The Court of Appeals erred in concluding that a narrow reading of the Corps' regulatory jurisdiction over wetlands was necessary to avoid a taking problem. Neither the imposition of the permit requirement
Page 474 U. S. 122
itself nor the denial of a permit necessarily constitutes a taking. And the Tucker Act is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands. Pp. 474 U. S. 126-129.
2. The District Court's findings are not clearly erroneous, and plainly bring respondent's property within the category of wetlands, and thus of the "waters of the United States" as defined by the regulation in ques tion. Pp. 474 U. S. 129-131.
3. The language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of material into wetlands adjacent to other "waters of the United States." Pp. 474 U. S. 131-139.
729 F.2d 391 reversed.
WHITE, J., delivered the opinion for a unanimous Court.
Page 474 U. S. 123
JUSTICE WHITE delivered the opinion of the Court.
This case presents the question whether the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.
I
The relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under §§ 301 and 502 of the Act, 33U.S.C. §§ 1311 and 1362, any discharge of dredged or fill materials into "navigable waters" -- defined as the "waters of the United States" -- is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to § 404, 33 U.S.C. § 1344. [Footnote 1] After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining "the waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed.Reg. 31320
Page 474 U. S. 124
(1975). More importantly for present purposes, the Corps construed the Act to cover all "freshwater wetlands" that were adjacent to other covered waters. A "freshwater wetland" was defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." 33 CFR § 209.120(d)(2)(h) (1976). In 1977,the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows:
"The term 'wetlands' means those areas that are in undated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas."
33 CFR § 323.2(c) (1978). In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR § 323.2 (1985). [Footnote 2] Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an "adjacent wetland" under the 1975 regulation defining "waters of the United States," filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps.
Page 474 U. S. 125
The District Court held that the portion of respondent's property lying below 575.5 feet above sea level was a covered wetland, and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F.2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps' permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a).
Respondent again appealed, and the Sixth Circuit reversed. 729 F.2d 391 (1984). The court construed the Corps' regulation to exclude from the category of adjacent wetlands -- and hence from that of "waters of the United States" -- wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of "navigable waters," intended to allow regulation of wetlands that were not the result of flooding by navigable waters. [Footnote 3] Under the court's reading of the regulation, respondent's property was not within the Corps' jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit.
Page 474 U. S. 126
We granted certiorari to consider the proper interpretation of the Corps' regulation defining "waters of the United States" and the scope of the Corps' jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit's ruling. 469 U.S. 1206 (1985). We now reverse.
II
The question whether the Corps of Engineers may demand that respondent obtain a permit before placing fill material on its property is primarily one of regulatory and statutory interpretation: we must determine whether respondent's property is an "adjacent wetland" within the meaning of the applicable regulation, and, if so, whether the Corps' jurisdiction over "navigable waters" gives it statutory authority to regulate discharges of fill material into such a wetland. In this connection, we first consider the Court of Appeals' position that the Corps' regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment.
We have frequently suggested that governmental land use regulation may, under extreme circumstances, amount to a "taking" of the affected property. See, e.g., Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1985); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id. at 438 U. S. 123-128, but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255, 447 U. S. 260 (1980), where we stated that the application of land use regulations to a particular piece of property is a taking only "if the ordinance does not substantially advance legitimate state interests . . . or denies an owner economically viable use of his land." Moreover, we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452
Page 474 U. S. 127
U.S. 264, 452 U. S. 293-297 (1981). The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not, itself, "take" the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent "economically viable"use of the land in question can it be said that a taking has occurred.
If neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of Appeals erred in concluding that a narrow reading of the Corps' regulatory jurisdiction over wetlands was "necessary" to avoid "a serious taking problem." 729 F.2d at 398. [Footnote 4] We have held that, in general,
"[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law,
Page 474 U. S. 128
when a suit for compensation can be brought against the sovereign subsequent to a taking."
Ruckelshaus v. Monsanto Co., 467 U. S. 986, 467 U. S. 1016 (1984) (footnote omitted). This maxim rests on the principle that, so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. Williamson County, supra, at 473 U. S. 194-195. For precisely the same reason, the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will, in any event, be available in those cases where a taking has occurred. Under such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 297 U. S. 341-356 (1936) (Brandeis, J., concurring); it merely frustrates permissible applications of a statute or regulation. [Footnote 5] Because the Tucker Act, 28 U.S.C. § 1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at 467 U. S. 1017, is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands, the Court of Appeals' fears that application of the Corps' permit program might result in a taking did not justify the court in adopting a
Page 474 U. S. 129
more limited view of the Corps' authority than the terms of the relevant regulation might otherwise support. [Footnote 6]
III
Purged of its spurious constitutional overtones, the question whether the regulation at issue requires respondent to obtain a permit before filling its property is an easy one. The regulation extends the Corps' authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries. Wetlands, in turn, are defined as lands that are
"inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."
33 CFR § 323.2(c) (195) (emphasis added). The plain language of the regulation refutes the Court of Appeals' conclusion that inundation or "frequent flooding" by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that
Page 474 U. S. 130
the saturation is sufficient to, and does, support wetland vegetation. The history of the regulation underscores the absence of any requirement of inundation. The interim final regulation that the current regulation replaced explicitly included a requirement of "periodi[c] inundation." 33 CFR § 209.120(d)(2)(h) (1976). In deleting the reference to "periodic inundation" from the regulation as finally promulgated, the Corps explained that it was repudiating the interpretation of that language "as requiring inundation over a record period of years." 42 Fed.Reg. 37128 (1977). In fashioning its own requirement of "frequent flooding" the Court of Appeals improperly reintroduced into the regulation precisely what the Corps had excised. [Footnote 7] Without the nonexistent requirement of frequent flooding,the regulatory definition of adjacent wetlands covers the property here. The District Court found that respondent's property was "characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction,"
Page 474 U. S. 131
App. to Pet. for Cert. 24a, and that the source of the saturated soil conditions on the property was groundwater. There is no plausible suggestion that these findings are clearly erroneous, and they plainly bring the property within the category of wetlands as defined by the current regulation. In addition, the court found that the wetland located on respondent's property was adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent's property to Black Creek, a navigable waterway. Again, the court's finding is not clearly erroneous. Together, these findings establish that respondent's property is a wetland adjacent to a navigable waterway. Hence, it is part of the "waters of the United States" as defined by 33 CFR § 323.2 (1985), and if the regulation itself is valid as a construction of the term "waters of the United States" as used in the Clean Water Act, a question which we now address, the property falls within the scope of the Corps' jurisdiction over "navigable waters" under § 404 of the Act.
IV
A
An agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 470 U. S. 125 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act, for the Corps to exercise jurisdiction over wetlands adjacent to, but not regularly flooded by, rivers, streams, and other hydrographic features more conventionally identifiable as "waters." [Footnote 8]
Page 474 U. S. 132
On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under§ 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs -- in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious. Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps' approach of defining adjacent wetlands as "waters" within the meaning of§ 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101, 33 U.S.C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, "the word integrity' . . . refers to a condition in which the natural structure and function of ecosystems [are] maintained." H.R.Rep. No. 92911, p. 76(1972). Protection of aquatic ecosystems, Congress recognized,
Page 474 U. S. 133
demanded broad federal authority to control pollution, for "[w]ater moves in hydrologic cycles, and it is essential that discharge of pollutants be controlled at the source." S.Rep.No. 92414, p. 77 (1972). In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term"navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes, and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S.Conf.Rep. No. 921236, p. 144 (1972); 118 Cong.Rec. 33756-33757(1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy traditional tests of navigability; it is another to assert that Congress intended to abandon traditional notions of "waters" and include in that term "wetlands" as well. Nonetheless, the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term "waters" to encompass wetlands adjacent to waters as more conventionally defined. Following the lead of the Environmental Protection Agency, see 38 Fed.Reg. 10834 (1973), the Corps has determined that wetlands adjacent to navigable waters do, as a general matter, play a key role in protecting and enhancing water quality:
"The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . , but must focus on all waters that together form the entire aquatic system.
Page 474 U. S. 134
Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system."
"For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system."
42 Fed.Reg. 37128 (1977).
We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up with the "waters" of the United States -- based as it is on the Corps' and EPA's technical expertise -- is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR§ 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams, and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may
"serve significant natural biological functions, including food chain production, general habitat, and nesting,
Page 474 U. S. 135
spawning, rearing and resting sites for aquatic . . . species."
§ 320.4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps' judgment on these matters is unreasonable, and we therefore conclude that a definition of "waters of the United States" encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent's property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. [Footnote 9]
B
Following promulgation of the Corps' interim final regulations in 1975, the Corps' assertion of authority under § 404 over waters not actually navigable engendered some congressional opposition. The controversy came to a head during Congress' consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving "interim improvements within the existing framework" of the Clean Water Act. H.R.Rep. No. 95139, pp. 1-2 (1977). In the
Page 474 U. S. 136
end, however, as we shall explain, Congress acquiesced in the administrative construction.
Critics of the Corps' permit program attempted to insert limitations on the Corps' § 404 jurisdiction into the 1977 legislation: the House bill as reported out of committee proposed a redefinition of "navigable waters" that would have limited the Corps' authority under § 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). H.R. 3199, 95th Cong., 1st Sess., § 16 (1977). The bill reported by the Senate Committee on Environment and Public Works, by contrast, contained no redefinition of the scope of the "navigable waters" covered by § 404, and dealt with the perceived problem of overregulation by the Corps by exempting certain activities (primarily agricultural) from the permit requirement, and by providing for assumption of some of the Corps' regulatory duties by federally approved state programs. S.1952, 95th Cong., 1st Sess., § 49(b) (1977). On the floor of the Senate, however, an amendment was proposed limiting the scope of "navigable waters" along the lines set forth in the House bill. 123 Cong.Rec. 26710-26711 (1977).
In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id. at 10426-10432 (House debate); id. at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps' assertion of jurisdiction over wetlands and other nonnavigable"waters" had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of "navigable waters" for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps' jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of "waters"; but in the Senate the limiting
Page 474 U. S. 137
amendment was defeated and the old definition retained. The Conference Committee adopted the Senate's approach: efforts to narrow the definition of "waters" were abandoned; the legislation as ultimately passed, in the words of Senator Baker, "retain[ed] the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act." [Footnote 10]
The significance of Congress' treatment of the Corps' § 404 jurisdiction in its consideration of the Clean Water Act of 1977 is twofold. First, the scope of the Corps' asserted jurisdiction over wetlands was specifically brought to Congress' attention, and Congress rejected measures designed to curb the Corps' jurisdiction, in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of "navigable waters." Although we are chary of attributing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress' attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U. S. 574, 461 U. S. 599-601 (1983); United States v. Rutherford, 442 U. S. 544, 442 U. S. 554, and n. 10 (1979).
Second, it is notable that even those who would have restricted the reach of the Corps' jurisdiction would have done so not by removing wetlands altogether from the definition of "waters of the United States," but only by restricting the scope of "navigable waters" under § 404 to waters navigable in fact and their adjacent wetlands.In amending the definition of "navigable waters" for purposes of § 404 only, the backers of the House bill would have left intact the existing definition of "navigable waters" for purposes of § 301 of the
Page 474 U. S. 138
Act, which generally prohibits discharges of pollutants into navigable waters. As the House Report explained: "Navigable waters,' as used in section 301, includes all of the waters of the United States, including their adjacent wetlands." H.R.Rep. No. 95139, p. 24 (1977). Thus, even those who thought that the Corps' existing authority under § 404 was too broad recognized (1) that the definition of "navigable waters" then in force for both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality concerns of the Clean Water Act demanded regulation of at least some discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill material after passage of the 1977 legislation should extend to discharges into wetlands adjacent to any waters over which the Corps retained jurisdiction. These views provide additional support for a conclusion that Congress in 1977 acquiesced in the Corps' definition of waters as including adjacent wetlands.
Two features actually included in the legislation that Congress enacted in 1977 also support the view that the Act authorizes the Corps to regulate discharges into wetlands. First, in amending § 404 to allow federally approved state permit programs to supplant regulation by the Corps of certain discharges of fill material, Congress provided that the States would not be permitted to supersede the Corps' jurisdiction to regulate discharges into actually navigable waters and waters subject to the ebb and flow of the tide, "including wetlands adjacent thereto." CWA § 404(g)(1), 33 U.S.C.§ 1344(g)(1). Here, then, Congress expressly stated that the term "waters" included adjacent wetlands. [Footnote 11] Second, the
Page 474 U. S. 139
1977 Act authorized an appropriation of $6 million for completion by the Department of Interior of a "National Wetlands Inventory" to assist the States "in the development and operation of programs under this Act." CWA § 208(i)(2), 33U.S.C. § 1288(i)(2). The enactment of this provision reflects congressional recognition that wetlands are a concern of the Clean Water Act, and supports the conclusion that, in defining the waters covered by the Act to include wetlands, the Corps is "implementing congressional policy, rather than embarking on a frolic of its own." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 375 (1969).
C
We are thus persuaded that the language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the "waters of the United States." The regulation in which the Corps has embodied this interpretation, by its terms, includes the wetlands on respondent's property within the class of waters that may not be filled without a permit; and, as we have seen, there is no reason to interpret the regulation more narrowly than its terms would indicate. Accordingly, the judgment of the Court of Appeals is
Reversed.
[Footnote 1]
With respect to certain waters, the Corps' authority may be transferred to States that have devised federally approved permit programs. CWA § 404(g), as added, 91 Stat. 1600, 33 U.S.C. § 1344(g). Absent such an approved program, the Corps retains jurisdiction under § 404 over all "waters of the United States."
[Footnote 2]
The regulations also cover certain wetlands not necessarily adjacent to other waters. See 33 CFR §§ 323.2(a)(2) and (3) (1985). These provisions are not now before us.
[Footnote 3]
In denying the Government's petition for rehearing, the panel reiterated somewhat more strongly its belief that the Corps' construction of its regulation was "overbroad and inconsistent with the language of the Act." 729 F.2d at 401.
[Footnote 4]
Even were the Court of Appeals correct in concluding that a narrowing construction of the regulation is necessary to avoid takings of property through the application of the permit requirement, the construction adopted which requires a showing of frequent flooding before property may be classified as a wetland is hardly tailored to the supposed difficulty. Whether the denial of a permit would constitute a taking in any given case would depend upon the effect of the denial on the owner's ability to put the property to productive use. Whether the property was frequently flooded would have no particular bearing on this question, for overbroad regulation of even completely submerged property may constitute a taking. See, e.g., Kaiser Aetna v. United States, 444 U. S. 164 (1979). Indeed, it may be more likely that denying a permit to fill frequently flooded property will prevent economically viable use of the property than denying a permit to fill property that is wet but not flooded. Of course, by excluding a large chunk of the Nation's wetlands from the regulatory definition, the Court of Appeals' construction might tend to limit the gross number of takings that the permit program would otherwise entail, but the construction adopted still bears an insufficiently precise relationship with the problem it seeks to avoid.
[Footnote 5]
United States v. Security Industrial Bank, 459 U. S. 70 (1982), in which we adopted a narrowing construction of a statute to avoid a taking difficulty, is not to the contrary. In that case, the problem was that there was a substantial argument that retroactive application of a particular provision of the Bankruptcy Code would in every case constitute a taking; the solution was to avoid the difficulty by construing the statute to apply only prospectively. Such an approach is sensible where it appears that there is an identifiable class of cases in which application of a statute will necessarily constitute a taking. As we have observed, this is not such a case: there is no identifiable set of instances in which mere application of the permit requirement will necessarily or even probably constitute a taking. The approach of adopting a limiting construction is thus unwarranted.
[Footnote 6]
Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred. On the record before us, however, we have no basis for evaluating this claim, because no evidence has been introduced that bears on the question of the extent to which denial of a permit to fill this property will prevent economically viable uses of the property or frustrate reasonable investment-backed expectations. In any event, this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent's property, respondent's proper course is not to resist the Corps' suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court. In so stating, of course, we do not rule that respondent will be entitled to compensation for any temporary denial of use of its property should the Corps ultimately relent and allow it to be filled. We have not yet resolved the question whether compensation is a constitutionally mandated remedy for "temporary regulatory takings," see Williamson County Planning Comm'n v. Hamilton Bank, 473 U. S. 172(1985), and this case provides no occasion for deciding the issue.
[Footnote 7]
The Court of Appeals seems also to have rested its frequent-flooding requirement on the language in the regulation stating that wetlands encompass those areas that "under normal circumstances do support" aquatic or semiaquatic vegetation. In the preamble to the final regulation, the Corps explained that this language was intended in part to exclude areas characterized by the "abnormal presence of aquatic vegetation in a nonaquatic area." 42 Fed.Reg. 37128 (1977). Apparently, the Court of Appeals concluded that the growth of wetlands vegetation in soils saturated by ground water, rather than flooded by waters emanating from an adjacent navigable water or its tributaries, was "abnormal" within the meaning of the preamble. This interpretation is untenable in light of the explicit statements in both the regulation and its preamble that areas saturated by ground water can fall within the category of wetlands. It would be nonsensical for the Corps to define wetlands to include such areas and then, in the same sentence, exclude them on the ground that the presence of wetland vegetation in such areas was abnormal. Evidently, the Corps had something else in mind when it referred to "abnormal" growth of wetlands vegetation -- namely, the aberrational presence of such vegetation in dry, upland areas.
[Footnote 8]
We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water, see 33 CFR §§ 323.2(a)(2) and (3) (1985), and we do not express any opinion on that question.
[Footnote 9]
Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps' decision to define all adjacent wetlands as "waters." If it is reasonable for the Corps to conclude that, in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps' definition is, in fact, lacking in importance to the aquatic environment, or where its importance is outweighed by other values the Corps may always allow development of the wetland for other uses simply by issuing a permit. See33 CFR § 320.4(b)(4) (1986).
[Footnote 10]
123 Cong.Rec. 39209 (1977); see also id. at 39210 (statement of Sen. Wallop); id. at 39196 (statement of Sen. Randolph); id. at 38950 (statement of Rep. Murphy); id. at 38994 (statement of Rep. Ambro).
[Footnote 11]
To be sure, § 404(g)(1) does not conclusively determine the construction to be placed on the use of the term "waters" elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of "navigable waters"); however, in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term "waters," as used in the Act, does not necessarily exclude "wetlands."
21. Wiwa v Royal Dutch Petroleum,226 F.3d 88 (2d Cir. USA, 2000)
3 United States Court of Appeals,Second Circuit.
Ken WIWA, individually and as Administrator of the Estate of his deceased father, Ken Saro-Wiwa, Owens Wiwa, and Blessing Kpuinen, individually and as Administratrix of the Estate of her husband, John Kpuinen, and Jane Doe, Plaintiffs-Appellants-Cross-Appellees, v. ROYAL DUTCH PETROLEUM COMPANY, and Shell Transport and Trading Company, P.L.C., Defendants-Appellees-Cross-Appellants.
1 Docket Nos. 99-7223, 99-7245.
2 Decided: September 14, 2000
Before: OAKES, LEVAL and POOLER, Circuit Judges.Judith Brown Chomsky, Elkins Park, PA (Jennifer M. Green, Beth Stephens, and Richard Herz, Center for Constitutional Rights, New York, N.Y. on the brief) for Plaintiffs-Appellants-Cross-Appellees. Rory O. Millson, Cravath, Swaine & Moore, New York, N.Y. (Sandra C. Goldstein on the brief) for Defendants-Appellees-Cross-Appellants.
This case concerns the application of forum non conveniens doctrine to suits under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, involving claimed abuses of the international law of human rights. Plaintiffs are three Nigerian émigrés, and a woman identified only as Jane Doe to protect her safety, who allege that they (or in some cases their deceased next of kin) suffered grave human rights abuses at the hands of the Nigerian authorities. Defendants Royal Dutch Petroleum Company (“Royal Dutch”) and Shell Transport and Trading Co., P.L.C. (“Shell Transport”) are business corporations, incorporated in the Netherlands and the United Kingdom respectively, that are alleged to have directly or indirectly participated in or directed these abuses. The district court (Wood, J.) dismissed the action for forum non conveniens after determining that England is an adequate alternative forum and that a balancing of public interest and private interest factors make the British forum preferable. Plaintiffs appeal, arguing, inter alia, that the district court erred in not affording sufficient weight to the plaintiffs' choice of forum and to the interests of the United States in providing a forum for the adjudication of claims of abuse of international human rights. Defendants contend that, regardless of the propriety of a dismissal based on forum non conveniens, the court lacked personal jurisdiction over them. We hold that the district court properly exercised jurisdiction over the defendants. As to the dismissal for forum non conveniens, we reverse.
BACKGROUND
A. Allegations of the Complaint
Defendant Royal Dutch is a holding company incorporated and headquartered in the Netherlands. Defendant Shell Transport is a holding company incorporated and headquartered in England. The two defendants jointly control and operate the Royal Dutch/Shell Group, a vast, international, vertically integrated network of affiliated but formally independent oil and gas companies. Among these affiliated companies is Shell Petroleum Development Company of Nigeria, Ltd. (“Shell Nigeria”), a wholly-owned Nigerian subsidiary of the defendants that engages in extensive oil exploration and development activity in the Ogoni region of Nigeria.
The amended complaint (“the complaint”) alleges that plaintiffs and their next of kin (hereafter collectively referred to as “Plaintiffs”) were imprisoned, tortured, and killed by the Nigerian government in violation of the law of nations at the instigation of the defendants, in reprisal for their political opposition to the defendants' oil exploration activities. According to the complaint, Shell Nigeria coercively appropriated land for oil development without adequate compensation, and caused substantial pollution of the air and water in the homeland of the Ogoni people. A protest movement arose among the Ogoni. Ken Saro-Wiwa was an opposition leader and President of the Movement for the Survival of the Ogoni People (MSOP); John Kpuinen was a leader of the MSOP's youth wing.
Allegedly, Shell Nigeria recruited the Nigerian police and military to attack local villages and suppress the organized opposition to its development activity. Saro-Wiwa and Kpuinen were repeatedly arrested, detained and tortured by the Nigerian government because of their leadership roles in the protest movement. In 1995, Saro-Wiwa and Kpuinen were hanged, along with other Ogoni leaders, after being convicted of murder by a special military tribunal. Allegedly, they were convicted on fabricated evidence solely to silence political criticism and were not afforded the legal protections required by international law. The complaint further alleges that plaintiff Owens Wiwa (Saro-Wiwa's brother) was illegally detained by Nigerian authorities, that plaintiff Jane Doe was beaten and shot by the Nigerian military in a raid upon her village, and that Saro-Wiwa's family-including Ken Saro-Wiwa's 74-year-old mother-were beaten by Nigerian officials while attending his trial.
According to the complaint, while these abuses were carried out by the Nigerian government and military, they were instigated, orchestrated, planned, and facilitated by Shell Nigeria under the direction of the defendants. The Royal Dutch/Shell Group allegedly provided money, weapons, and logistical support to the Nigerian military, including the vehicles and ammunition used in the raids on the villages, procured at least some of these attacks, participated in the fabrication of murder charges against Saro-Wiwa and Kpuinen, and bribed witnesses to give false testimony against them.1
B. Facts Relating to Jurisdiction in New York
1. Defendants' New York Stock Exchange Listings and Sundry Activities
Neither of the defendants has extensive direct contacts with New York. Both companies list their shares, either directly or indirectly,2 on the New York Stock Exchange. They conduct activities in New York incident to this listing, including the preparation of filings for the Securities and Exchange Commission (SEC) and the employment of transfer agents and depositories for their shares. Royal Dutch also maintains an Internet site, accessible in New York. They have participated in at least one lawsuit in New York as defendants, without contesting jurisdiction. They have for many years retained New York counsel.
Defendants own subsidiary companies that do business in the United States, including Shell Petroleum Inc. (SPI), a Delaware corporation. SPI in turn owns all the shares of Shell Oil Company (Shell Oil), the well-known oil and gas concern. Shell Oil has extensive operations in New York and is undisputedly subject to the jurisdiction of the New York courts.
2. Defendants' Maintenance of an Investor Relations Office in New York City
The defendants also maintain an Investor Relations Office in New York City, administered by James Grapsi, whose title is “Manager of Investor Relations.” The office is nominally a part of Shell Oil. However, all of its functions involve facilitating the relations of the parent holding companies, the defendants Royal Dutch and Shell Transport, with the investment community. The expenses of the office (consisting primarily of rent and salaries) are directly paid in the first instance by Shell Oil, but Shell Oil is reimbursed by the defendants, who therefore bear the full expense of the office. Those expenses average about $45,000 per month, or about $500,000 per year. The Investor Relations Office's duties involve fielding inquiries from investors and potential investors in Royal Dutch and Shell Transport, mailing information about the defendants to thousands of individuals and entities throughout the United States, and organizing meetings between officials of the defendants and investors, potential investors, and financial analysts. Each year the Investor Relations Office organizes about six such sessions and schedules them for various financial centers throughout the United States, including New York. Grapsi manages these functions out of a New York City office located in the Southern District of New York, and characteristically seeks the defendants' approval before scheduling meetings and making other similar decisions.
C. Proceedings Below
Plaintiffs filed this action on November 8, 1996 and filed an amended complaint on April 29, 1997. The amended complaint seeks damages under the ATCA, the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, international law and treaties, Nigerian law, and various state law torts. More specifically, the complaint alleges that the defendants are liable for summary execution; crimes against humanity; torture; cruel, inhuman, and degrading treatment; arbitrary arrest and detention; violations of the rights to life, liberty, security of the person, and peaceful assembly and association; wrongful death; assault and battery; intentional and negligent infliction of emotional distress; and conspiracy. It is not entirely clear whether the liability of the defendants is predicated on their own actions, on a theory of responsibility for the actions of their subsidiary Shell Nigeria, or on a combination of both.
At the time of the filing, two of the four plaintiffs (Blessing Kpuinen and Owens Wiwa) lived in the United States, though not in New York.3
The defendants moved to dismiss for lack of personal jurisdiction, forum non conveniens, and failure to state a claim. In a Report and Recommendation dated March 31, 1998, Magistrate Judge Henry Pitman recommended that Judge Wood dismiss the case for lack of jurisdiction or, alternatively, for forum non conveniens. Explicitly reserving the “difficult” questions of substantive law raised by the defendants' 12(b)(6) motion, Magistrate Judge Pitman found that neither the maintenance of the Investor Relations Office nor the defendants' direct actions in New York, were sufficient to constitute “doing business” in New York, as required to establish general jurisdiction under N.Y. C.P.L.R. § 301. Turning to the forum non conveniens issue, he determined that England was an “adequate alternative forum” and that the various factors a court is required to balance in evaluating such a motion favor adjudication of the dispute in England.
Upon plaintiffs' objections to the Magistrate Judge's Report, Judge Wood, by order dated September 25, 1998, found that jurisdiction over the defendants was established under § 301 by virtue of their maintenance of the Investor Relations Office in New York, but accepted the Magistrate Judge's recommendation to dismiss for forum non conveniens.
Plaintiffs moved for reconsideration in light of this court's decision in Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998). By order dated January 20, 1999, Judge Wood granted their motion, to the extent of conditioning dismissal on the defendants' commitment to consent to service of process in England, comply with all discovery orders, pay any judgment rendered in England, waive a security bond, and waive a statute of limitations defense if an action is begun in England within one year of the conclusion of these proceedings, which conditions defendants accepted. Otherwise the motion was denied.
DISCUSSION
A. Personal Jurisdiction
Under the Federal Rules of Civil Procedure, a court may exercise jurisdiction over any defendant “who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located,” Fed.R.Civ.P. 4(k)(1)(a), provided of course that such an exercise of jurisdiction comports with the Fifth Amendment's Due Process Clause. The question is therefore whether the defendants may be subjected to the jurisdiction of the courts of the State of New York.
Before the court below, plaintiffs offered multiple theories as to why New York could properly exercise personal jurisdiction over the defendants. While the Magistrate Judge rejected all of these theories, the district court held that, under prevailing law, the activities of the Investor Relations Office on the defendants' behalf in New York were both attributable to the defendants and sufficient to confer jurisdiction. On appeal, defendants make four arguments: (1) these activities are not attributable to the defendants for jurisdictional purposes; (2) these New York activities cannot be considered in the jurisdictional calculus because they are merely “incidental” to a stock market listing and are jurisdictionally inconsequential as a matter of law; (3) the Investor Relations activities are legally insufficient to confer general jurisdiction; and (4) exercising jurisdiction over the defendants would violate the fairness requirement of the Due Process Clause. For the reasons discussed below, we reject each of these contentions and hold that the defendants are subject to personal jurisdiction in the Southern District of New York.4
(1) The Agency Analysis.
Under New York law, a foreign corporation is subject to general personal jurisdiction in New York if it is “doing business” in the state. See N.Y. C.P.L.R. § 301 (codifying caselaw that incorporates “doing business” standard); see also Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985). “[A] corporation is ‘doing business' and is therefore ‘present’ in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Id. (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)). In order to establish that this standard is met, a plaintiff must show that a defendant engaged in “continuous, permanent, and substantial activity in New York.” Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir.1990).
The continuous presence and substantial activities that satisfy the requirement of doing business do not necessarily need to be conducted by the foreign corporation itself. In certain circumstances, jurisdiction has been predicated upon activities performed in New York for a foreign corporation by an agent. Under well-established New York law, a court of New York may assert jurisdiction over a foreign corporation when it affiliates itself with a New York representative entity and that New York representative renders services on behalf of the foreign corporation that go beyond mere solicitation and are sufficiently important to the foreign entity that the corporation itself would perform equivalent services if no agent were available. See, e.g., Frummer v. Hilton Hotels Int'l Inc., 19 N.Y.2d 533, 537, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967) (finding jurisdiction over foreign hotel chain based on the activities of affiliated reservations service); Gelfand v. Tanner Motor Tours, Ltd., 385 F.2d 116, 120-21 (2d Cir.1967) (applying Frummer to find jurisdiction over tour operator based on the activities of affiliated travel agent). To come within the rule, a plaintiff need demonstrate neither a formal agency agreement, see, e.g., New York Marine Managers, Inc. v. M.V. “Topor-1”, 716 F.Supp. 783, 785 (S.D.N.Y.1989), nor that the defendant exercised direct control over its putative agent, see, e.g., Palmieri v. Estefan, 793 F.Supp. 1182, 1194 (S.D.N.Y.1992). The agent must be primarily employed by the defendant and not engaged in similar services for other clients. See, e.g., Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 481, 176 N.Y.S.2d 318, 151 N.E.2d 874 (1958) (holding that independent contractors with many clients are not considered agents of their individual clients for jurisdictional purposes).
Both Magistrate Judge Pitman and Judge Wood found that Grapsi and the Investor Relations Office were agents of the defendants for jurisdictional purposes. We agree. While nominally a part of Shell Oil, Grapsi and the Investor Relations Office devoted one hundred percent of their time to the defendants' business. Their sole business function was to perform investor relations services on the defendants' behalf. The defendants fully funded the expenses of the Investor Relations Office (including salary, rent, electricity, mailing costs, etc.), and Grapsi sought the defendants' approval on important decisions.
The defendants nonetheless argue that the relationship does not meet the Frummer /Gelfand test. They contend the services of the Investor Relations Office were not sufficiently important that the defendants would have performed them if an agent had been unavailable. We do not find this argument persuasive. While it is true that the Investor Relations Office was not directly involved with the core functions of the defendant's business-the operation of an integrated international oil business, its work was of meaningful importance to the defendants. The defendants are huge publicly-traded companies with a need for access to capital markets. The importance of their need to maintain good relationships with existing investors and potential investors is illustrated by the fact that they pay over half a million dollars per year to maintain the Investors Relations office. In our view, the amount invested by the defendants in the U.S. investor relations activity substantially establishes the importance of that activity to the defendants.
Defendants also contend that, if they were to perform the Investor Relations services themselves, it would not necessarily be in New York. The argument is extremely weak. While of course it is true, especially given technological advances in communication, that such an office could conceivably be located anywhere in the world, the strongest indications are that the defendants selected New York as the locus of the present office because that is the most logical place for it. Insofar as the office concerns itself with investors in the U.S. capital markets, it makes better sense to have the office in the United States, rather than in another country. New York is widely regarded as the capital of U.S. capital markets. It seems most likely that the Investor Relations Office established by Shell Oil for the benefit of its parents and at their insistence was established in New York City because that was the best place for such an office, and that it would most likely be located in New York City regardless whether operated directly by the defendants, by Shell Oil, or by any other agent.5 Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (describing as “essential” element in jurisdictional inquiry the question whether “there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws”); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (same); LiButti v. United States, 178 F.3d 114, 122 (2d Cir.1999) (same).
The defendants' argument is also difficult to square with the facts of the seminal agency jurisdiction cases, Frummer and Gelfand. In those cases, the foreign corporations were not absolutely required to choose New York as the locus of their reservations services. See generally Frummer, 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851 (involving booking agent that took reservations and performed public relations services for a foreign hotel chain); Gelfand, 385 F.2d 116 (involving sales representative that took reservations and performed other services for out-of-state tour operator). They could have located those operations elsewhere, either foregoing the New York market entirely or arranging to service New York customers more circuitously. However, in both those cases the defendants chose to locate offices in Manhattan to establish easy access to New York's rich market of potential customers, see Gelfand, 385 F.2d at 121, thereby better serving their own interests. The circumstances of the present case support the inference that the defendants made a similar calculation when they chose to locate their Investor Relations Office in New York.
(2) The Nature of the Activities of the Investor Relations Office.
The defendants contend their Investor Relations Office is an activity that is “incidental” to their listing on the New York Stock Exchange. They cite to a long stream of caselaw reaching back over a century that they argue precludes courts from considering activity “incidental” to stock market listings when evaluating whether a corporation is doing business in the state of New York. We agree that the prevailing caselaw accords foreign corporations substantial latitude to list their securities on New York-based stock exchanges and to take the steps necessary to facilitate those listings (such as making SEC filings and designating a depository for their shares) without thereby subjecting themselves to New York jurisdiction for unrelated occurrences. See, e.g., Celi v. Canadian Occidental Petroleum Ltd., 804 F.Supp. 465, 468 (E.D.N.Y.1992); Fowble v. Chesapeake & Ohio Ry. Co., 16 F.2d 504, 505 (S.D.N.Y.1926); Clews v. Woodstock Iron Co., 44 F. 31, 32 (S.D.N.Y.1890); Freeman v. Bean, 266 N.Y. 657, 657-58, 195 N.E. 368 (1935). However, defendants misread the scope of the existing caselaw when they argue that all contacts related to stock exchange listings are stripped of jurisdictional significance.
To begin with, it is not that activities necessary to maintain a stock exchange listing do not count, but rather that, without more, they are insufficient to confer jurisdiction. See, e.g., Pomeroy v. Hocking Valley Ry. Co., 218 N.Y. 530, 536, 113 N.E. 504 (1916) (“The payment, too, of dividends and the transfer of stock while perhaps not sufficient of themselves to constitute the transaction of business ․, doubtless are of some importance in connection with other facts.”); Fowble, 16 F.2d at 505 (such contacts are “of some importance in determining whether the corporation [i]s doing business in the state, although such facts may not be sufficient in itself to constitute such doing of business”). Other cases in this line imply a similar result when they suggest that jurisdiction is not available over a corporation whose only contacts with the forum are listings on the New York stock exchanges and ancillary arrangements involving the distribution of their shares. See, e.g., Grossman v. Sapphire Petroleums Ltd., 195 N.Y.S.2d 851, 852-53 (N.Y.Sup.1959).
The Investor Relations Office conducts a broader range of activities on the defendants' behalf than those described in the cited cases as merely “incidental” to the stock exchange listing. These activities, which range from fielding inquiries from investors and potential investors to organizing meetings between defendants' officials and investors, potential investors, and financial analysts, do not properly come within the rule upon which the defendants rely. The defendants' Investor Relations program results not from legal or logistical requirements incumbent upon corporations that list their shares on the New York Stock Exchange, but from the defendants' discretionary determination to invest substantial sums of money in cultivating their relationship with the New York capital markets. It appears the location of the office in New York City has far more to do with the importance of New York as a center of capital markets than with the proximity of the New York Stock Exchange. A company can perfectly well maintain a listing on the New York (or any other) Stock Exchange without maintaining an office nearby to cultivate relations with investors.
In summary, the large body of caselaw the defendants point to at most stands for the proposition that, absent other substantial contacts, a company is not “doing business” in New York merely by taking ancillary steps in support of its listing on a New York exchange. The activities chargeable to the defendants go well beyond this minimum. We conclude that the activities of the Investor Relations Office go beyond the range of activities that have been held insufficient to subject foreign corporations to the jurisdiction of New York courts.
(3) The Sufficiency of Contacts
The defendants further contend that the activities of the Investor Relations Office are quantitatively insufficient to confer jurisdiction. See Landoil, 918 F.2d at 1043 (requiring “continuous, permanent and substantial activity”) (quoting Weinstein, Korn & Miller, New York Civil Practice, ¶ 301.16, at 3-32). We find no merit to this contention. Where, as here, plaintiffs' claim is not related to defendants' contacts with New York, so that jurisdiction is properly characterized as “general,” plaintiffs must demonstrate “the defendant's ‘continuous and systematic general business contacts.’ ” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Defendants' contacts constitute “a continuous and systematic general business” presence in New York and therefore satisfy the minimum contacts portion of a due process analysis.
Citing to a string of cases holding that solicitation of business plus minimal additional contacts satisfies Section 301, Judge Wood characterized the activities of the Investor Relations Office as satisfying the test of “solicitation plus.” The defendants dispute this characterization, arguing that Grapsi did not perform “solicitation” because he did not offer to buy or sell any stock in the corporation. As Judge Wood noted, however, a finding of “solicitation” in the jurisdictional context does not necessarily require “solicitation” in the sense of an offer of contract. Rather, the central question is whether the defendant (or its agent) behaved in such a way so as to encourage others to spend money (or otherwise act) in a manner that would benefit the defendant. Cf., e.g., Landoil, 918 F.2d at 1044 (trips to New York to service existing accounts constitutes “solicitation”). Judge Wood's characterization of the Investor Relations Office's activities as “solicitation” appears to be a sound interpolation of pre-existing precedent into a new factual context.
However, we need not rely upon such a characterization to support general jurisdiction in this case, because even without relying on the “solicitation plus” formulation, the activities of the Investor Relations Office meet the “doing business” standard. In assessing whether jurisdiction lies against a foreign corporation, both this court and the New York courts have focused on a traditional set of indicia: for example, whether the company has an office in the state, whether it has any bank accounts or other property in the state, whether it has a phone listing in the state, whether it does public relations work there, and whether it has individuals permanently located in the state to promote its interests. See, e.g., Hoffritz for Cutlery, 763 F.2d at 58; Frummer, 19 N.Y.2d at 537, 281 N.Y.S.2d 41, 227 N.E.2d 851. The Investor Relations Office, whose activities are attributable to the defendants under the Frummer analysis, meets each of these tests. It constitutes a substantial “physical corporate presence” in the State, permanently dedicated to promoting the defendants' interests. Artemide SpA v. Grandlite Design & Mfg. Co., 672 F.Supp. 698, 703 (S.D.N.Y.1987); see also, e.g., Lane v. Vacation Charters, Ltd., 750 F.Supp. 120, 125 (S.D.N.Y.1990) ( “Perhaps the most important factor needed for a finding of jurisdiction under CPLR § 301 is the in-state presence of employees engaged in business activity.”); cf. Landoil, 918 F.2d at 1045 n. 10 (noting that while periodic business trips to New York to solicit business did not confer jurisdiction, “renting a hotel room ․ on a systematic and regular basis might be the functional equivalent of an office in New York and therefore might be sufficient to establish presence within the state”). We agree with Judge Wood that the continuous presence of the Investor Relations program in New York City is sufficient to confer jurisdiction.
(4) Fairness
Finally, the defendants argue that it would violate the fairness requirement of the Due Process Clause for a New York court to exercise jurisdiction over them. Again, we disagree.
Personal jurisdiction may be exercised only when (1) the State's laws authorize service of process upon the defendant and (2) an assertion of jurisdiction under the circumstances of the case comports with the requirements of due process. See, e.g., Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir.1999). The required due process inquiry itself has two parts: whether a defendant has “minimum contacts” with the forum state and whether the assertion of jurisdiction comports with “traditional notions of fair play and substantial justice-that is whether ․ [the exercise of jurisdiction] is reasonable under the circumstances of a particular case.” Chaiken v. VV Publ'g Corp., 119 F.3d 1018, 1027 (2d Cir.1997) (internal quotations omitted).
As noted above, the defendants' contacts go well beyond the minimal. As a general rule, in making the constitutional analysis once a plaintiff has made a “threshold showing” of minimum contacts, the defendant must come forward with a “compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Robertson-Ceco Corp., 84 F.3d at 568 (internal quotations omitted). The defendants have not made any such compelling showing here.
While it is true that certain factors normally used to assess the reasonableness of subjection to jurisdiction do favor the defendants (they are foreign corporations that face something of a burden if they litigate here, and the events in question did not occur in New York), litigation in New York City would not represent any great inconvenience to the defendants. The defendants control a vast, wealthy, and far-flung business empire which operates in most parts of the globe. They have a physical presence in the forum state, have access to enormous resources, face little or no language barrier, have litigated in this country on previous occasions, have a four-decade long relationship with one of the nation's leading law firms, and are the parent companies of one of America's largest corporations, which has a very significant presence in New York. New York City, furthermore, where the trial would be held, is a major world capital which offers central location, easy access, and extensive facilities of all kinds. We conclude that the inconvenience to the defendants involved in litigating in New York City would not be great and that nothing in the Due Process Clause precludes New York from exercising jurisdiction over the defendants.
B. Forum Non Conveniens
Plaintiffs appeal from the decision of the district court to dismiss for forum non conveniens. The grant or denial of a motion to dismiss for forum non conveniens is generally committed to the district court's discretion. See, e.g., Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir.1996). The deference accorded to a district court's discretion, however, presupposes that the court used the correct standards prescribed by the governing rule of law. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 144-45 (2d Cir.2000) (quoting R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir.1991)). We believe that, as a matter of law, in balancing the competing interests, the district court did not accord proper significance to a choice of forum by lawful U.S. resident plaintiffs or to the policy interest implicit in our federal statutory law in providing a forum for adjudication of claims of violations of the law of nations.
In 1947, the Supreme Court handed down a pair of decisions laying out the framework for forum non conveniens analysis that the federal courts follow to this day. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Koster v. American Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Under these cases, forum non conveniens is a discretionary device permitting a court in rare instances to “dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.” PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir.1998); see also Gilbert, 330 U.S. at 507, 67 S.Ct. 839. In assessing whether forum non conveniens dismissal is appropriate, courts engage in a two-step process: The first step is to determine if an adequate alternative forum exists. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Gilbert, 330 U.S. at 506-07, 67 S.Ct. 839. If so, courts must then balance a series of factors involving the private interests of the parties in maintaining the litigation in the competing fora and any public interests at stake. See, e.g., id. at 508-09, 67 S.Ct. 839. The defendant has the burden to establish that an adequate alternative forum exists and then to show that the pertinent factors “tilt[ ] strongly in favor of trial in the foreign forum.” R. Maganlal & Co., 942 F.2d at 167. “[T]he plaintiff's choice of forum should rarely be disturbed.” Gilbert, 330 U.S. at 508, 67 S.Ct. 839.
On appeal, plaintiffs challenge both prongs of the district court's finding. As to the first prong, they dispute the adequacy of a British forum, because three doctrines of English law-double actionability, transmissibility, and the act of state doctrine-would potentially bar a British court from reaching the subject matter of this dispute. As the parties' experts describe the British law, the doctrine of double accountability states that, with limited exceptions, torts committed in other countries are actionable in England only if they would be actionable under both English law and the law of the country in which the act was committed.6 The doctrine of transmissibility holds that the question whether a decedent's claims transfer to his survivors is determined by the law of the decedent's nation.7 The act of state doctrine bars, on comity grounds, the consideration of certain claims arising out of the official actions of foreign governments.8
At oral argument in this court, the defendants undertook not to invoke either double actionability or transmissibility to block the plaintiffs' claims in a British court. The defendant made no such undertaking concerning the act of state doctrine. It is not clear in any event what significance to accord to such undertakings. As the policies underlying the act of state doctrine are grounded not in the rights of the parties but in comity among nations, a court may well follow the doctrine regardless whether it was advanced by the party to be benefitted. Also, as to double actionability and transmissibility, the British courts might well follow British law to determine whether an action lies and whether the plaintiff has standing to bring it, regardless whether the defendant raised an argument based on these doctrines.
As to the act of state doctrine, the parties vigorously dispute whether the doctrine has broader contours in the British courts than in the United States. The defendants argue, furthermore, that availability of an adequate alternative forum focuses on the quality of the forum and its commitment to the rule of law and not on differences in substantive or procedural law between the competing fora that might influence the outcome of the trial. See Piper, 454 U.S. at 254 & n. 22, 102 S.Ct. 252 (noting that rules of law less favorable to the plaintiff rarely affect the threshold inquiry into whether alternative forum is “adequate”); PT United Can, 138 F.3d at 74 (foreign forum still “adequate” alternative forum for RICO action despite absence of similar conspiracy statute).
We need not resolve these issues. We regard the British courts as exemplary in their fairness and commitment to the rule of law. Furthermore, we assume arguendo that there are no rules of British law that would prevent a British court from reaching the merits. We believe the order of dismissal must nonetheless be reversed as the defendants have not established as Gilbert requires that the pertinent factors tilt sufficiently strongly in favor of trial in the foreign forum.
In our view, the district court failed to give weight to three significant considerations that favor retaining jurisdiction for trial: (1) a United States resident plaintiff's choice of forum, (2) the interests of the United States in furnishing a forum to litigate claims of violations of the international standards of the law of human rights, and (3) the factors that led the district court to dismiss in favor of a British forum were not particularly compelling. For the reasons developed below, we believe that they are outweighed by the considerations favoring exercise of the court's jurisdiction.
(1) Deference to the Choice of a United States Forum by a Lawful United States Resident Plaintiff
By definition, the doctrine of forum non conveniens contemplates the dismissal of lawsuits brought by plaintiffs in their favored forum in favor of adjudication in a foreign court. Nonetheless, a plaintiff's choice of forum is entitled to substantial deference and should only be disturbed if the factors favoring the alternative forum are compelling. See, e.g., Gilbert, 330 U.S at 508, 67 S.Ct. 839 (“[A] plaintiff's choice of forum should rarely be disturbed.”); Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1001 (2d Cir.1993) (“[T]here is ․ a strong presumption in favor of a plaintiff's choice of forum.”); R. Maganlal & Co., 942 F.2d at 167 (as plaintiff's choice of forum is entitled to deference, forum non conveniens dismissal is only permissible where the relevant considerations “tilt[ ] strongly in favor of trial in the foreign forum”); cf. Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (plaintiff is “master” of his or her own lawsuit).
While any plaintiff's selection of a forum is entitled to deference, that deference increases as the plaintiff's ties to the forum increase. See, e.g., Murray v. British Broad. Corp., 81 F.3d 287, 290 (2d Cir.1996) (holding that a domestic plaintiff's choice of forum is entitled to more deference than a foreign plaintiff's); see also Piper, 454 U.S. at 255 n. 23, 102 S.Ct. 252 (noting that the choice of a forum by its citizens and residents is entitled to greater deference than a stranger's choice); Koster, 330 U.S. at 524, 67 S.Ct. 828 (“[A] real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.”). In a decision handed down since oral argument in this case, we overturned a forum non conveniens dismissal in a case brought by a United States citizen involving events occurring outside the United States where the defendant was unable to “ ‘establish such oppressiveness and vexation ․ as to be out of all proportion to plaintiff's convenience’ ” and where there were no compelling public interest considerations favoring litigation in the alterative foreign forum. Guidi, 224 F.3d at 145-46 (quoting Koster, 330 U.S. at 524, 67 S.Ct. 828).
These cases do not reflect a rigid rule of decision protecting U.S. citizen or resident plaintiffs from dismissal for forum non conveniens. Rather, they illustrate the manner in which a court must take into account the hardship dismissal would cause to a resident plaintiff when evaluating the Gilbert factors; in the words of this court the cited cases represent a “consistent, pragmatic application” of the Gilbert factors to actions in which a plaintiff has particular ties to the forum state. Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 152 (2d Cir.1980) (in banc). The Gilbert test requires a balancing of factors, and a plaintiff's lawful U.S. residence can be a meaningful factor supporting the plaintiff's choice of a U.S. forum. Cf. Alcoa, 654 F.2d at 155 (forum non conveniens should not be conditioned solely upon residence, but “ ‘residence is, of course, an important factor to be considered’ ”) (quoting Silver v. Great American Insurance Co., 29 N.Y.2d 356, 361, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972)).
That is the case not because of chauvinism or bias in favor of U.S. residents. It is rather because the greater the plaintiff's ties to the plaintiff's chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction. Also, while our courts are of course required to offer equal justice to all litigants, see id., 654 F.2d at 152-53 (noting existence of treaties requiring “no less favorable” treatment of foreign nationals), a neutral rule that compares the convenience of the parties should properly consider each party's residence as a factor that bears on the inconvenience that party might suffer if required to sue in a foreign nation.
During the last two decades, our caselaw and that of the Supreme Court has clearly and unambiguously established that courts should offer greater deference to the selection of a U.S. forum by U.S. resident plaintiffs when evaluating a motion to dismiss for forum non conveniens. See, e.g., Murray, 81 F.3d at 290; Piper, 454 U.S. at 255 n. 23, 102 S.Ct. 252. Our earlier in-banc decision in Alcoa, 654 F.2d 147, is not to the contrary. In that case, we rejected the proposition that courts must accord “a talismanic significance to the citizenship or residence of the parties,” id. at 154, and held that “citizenship [and] residence no longer are absolutely determinative factors,” id. at 157, in the forum non conveniens analysis. Alcoa requires that we apply the Gilbert factors in evaluating a forum non conveniens motion, even when the plaintiff is a U.S. citizen or resident; Murray and Piper point to the important role the plaintiff's residence and citizenship potentially play in the Gilbert analysis; and Guidi illustrates that a plaintiff's U.S. citizenship and residence is entitled to consideration in favor of retaining jurisdiction, such that the Gilbert factors will favor dismissal (in the absence of strong public interest factors favoring dismissal) only if the defendant can establish “ ‘such oppressiveness and vexation ․ as to be out of all proportion to plaintiff's convenience.’ ” Guidi, 224 F.3d at 146 (quoting Koster, 330 U.S. at 524, 67 S.Ct. 828).9
In this case, the district court weighed against the plaintiffs that none of them were residents of the Southern District of New York but did not count in favor of their choice of a U.S. forum that two of them were residents of the United States. This was error. See, e.g., Piper, 454 U.S. at 255 n. 23, 102 S.Ct. 252; In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 809 F.2d 195, 198 (2d Cir.1987). The benefit for a U.S. resident plaintiff of suing in a U.S. forum is not limited to suits in the very district where the plaintiff resides, especially considering that the defendant may not be amenable to suit in the plaintiff's district of residence. See, e.g., Guidi, 224 F.3d at 146-47 (the “home forum” of an American citizen for forum non conveniens purposes is any “United States court”); see also Piper, 454 U.S. at 255 n. 23, 102 S.Ct. 252 (distinguishing between “foreign” and “American” plaintiffs in explaining why greater deference is due to the forum choice of “citizens” and “residents”); cf. Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 697, 70 S.Ct. 861, 94 L.Ed. 1206 (1950) (“[A] suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners.”). In deciding whether to dismiss a case brought by a lawful U.S. resident plaintiff for forum non conveniens, the district should consider whether, in view of the plaintiff's U.S. residence, such a dismissal would cause plaintiff significant hardship.
In all of our cases in which we have deemed a plaintiff “foreign” and accorded that plaintiff's choice of forum less deference, the plaintiffs involved were foreign corporations or foreign-national individuals residing abroad. See, e.g., Capital Currency Exch. N.V. v. National Westminster Bank, P.L.C., 155 F.3d 603, 611-12 (2d Cir.1998), cert. denied, 526 U.S. 1067, 119 S.Ct. 1459, 143 L.Ed.2d 545 (1999) (real parties in interest were English corporations); PT United Can, 138 F.3d at 74 (plaintiff was an Indonesian corporation); In re Union Carbide, 809 F.2d at 198 (plaintiffs were Indian citizens and residents). We have never accorded less deference to a foreign plaintiff's choice of a United States forum where that plaintiff was a U.S. resident.
In short, the district court applied an incorrect standard of law when it failed to credit the fact that two of the plaintiffs were United States residents as a consideration favoring plaintiff's choice of a U.S. forum.
(2) The Application of Forum Non Conveniens Doctrine to ATCA Cases
The plaintiffs also argue that the ATCA, as supplemented by the Torture Victim Prevention Act (TVPA), 28 U.S.C. § 1350 App., in 1991, reflects a United States policy interest in providing a forum for the adjudication of international human rights abuses, and that this policy interest should have a role in the balancing of the Gilbert factors.
The Alien Tort Claims Act was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21 (2d Cir.1980) (identifying only two previous cases that had relied upon the ATCA for jurisdiction). As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga, 630 F.2d 876 (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F.Supp. 162 (D.Mass.1995) (alleging abuses by Guatemalan military forces).
These suits produced several important decisions interpreting the meaning and scope of the 1789 Act. For example, in Filartiga v. Pena-Irala, 630 F.2d at 880, 884-86, this court held that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. More recently, we held in Kadic v. Karadzic, 70 F.3d at 239-40, 245, that the ATCA reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties.
In passing the Torture Victim Prevention Act, 28 U.S.C. § 1350 App., in 1991, Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. While the 1789 Act expressed itself in terms of a grant of jurisdiction to the district courts,10 the 1991 Act (a) makes clear that it creates liability under U.S. law where under “color of law, of any foreign nation” an individual is subject to torture or “extra judicial killing,” 11 and (b) extends its remedy not only to aliens but to any “individual,” thus covering citizens of the United States as well. 28 U.S.C. § 1350 App. The TVPA thus recognizes explicitly what was perhaps implicit in the Act of 1789-that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law. See H.R.Rep. No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86 (noting that purposes of TVPA are to codify Filartiga, to alleviate separation of powers concerns, and to expand remedy to include U.S. citizens).
Whatever may have been the case prior to passage of the TVPA, we believe plaintiffs make a strong argument in contending that the present law, in addition to merely permitting U.S. District Courts to entertain suits alleging violation of the law of nations, expresses a policy favoring receptivity by our courts to such suits. Two changes of statutory wording seem to indicate such an intention. First is the change from addressing the courts' “jurisdiction” to addressing substantive rights; second is the change from the ATCA's description of the claim as one for “tort ․ committed in violation of the law of nations ․” to the new Act's assertion of the substantive right to damages under U.S. law. This evolution of statutory language seems to represent a more direct recognition that the interests of the United States are involved in the eradication of torture committed under color of law in foreign nations.12
In Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir.1998), we recognized the plaintiff's argument that “to dismiss ․ [a claim pursuant to the ATCA under forum non conveniens ] would frustrate Congress's intent to provide a federal forum for aliens suing domestic entities for violation of the law of nations.” We expressed “no view” on the question but directed the District Court to consider the issue on remand. Id. In this case, the issue is again advanced (in slightly different form, as Jota did not involve torture and the defendants in this case are not domestic entities).
Dismissal on grounds of forum non conveniens can represent a huge setback in a plaintiff's efforts to seek reparations for acts of torture. Although a forum non conveniens dismissal by definition presupposes the existence of another forum where the suit may be brought, see Jota, 157 F.3d at 158-59, dismissal nonetheless requires the plaintiff to start over in the courts of another nation, which will generally at least require the plaintiff to obtain new counsel, as well as perhaps a new residence.
One of the difficulties that confront victims of torture under color of a nation's law is the enormous difficulty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place. It is not easy to bring such suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and difficult to administer. In addition, because they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they are brought. Finally, because characteristically neither the plaintiffs nor the defendants are ostensibly either protected or governed by the domestic law of the forum nation, courts often regard such suits as “not our business.”
The new formulations of the Torture Victim Protection Act convey the message that torture committed under color of law of a foreign nation in violation of international law is “our business,” as such conduct not only violates the standards of international law but also as a consequence violates our domestic law. In the legislative history of the TVPA, Congress noted that universal condemnation of human rights abuses “provide[s] scant comfort” to the numerous victims of gross violations if they are without a forum to remedy the wrong. House Report at 3, 1992 U.S.C.C.A.N. at 85. This passage supports plaintiffs' contention that in passing the Torture Victim Prevention Act, Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts. If in cases of torture in violation of international law our courts exercise their jurisdiction conferred by the 1789 Act only for as long as it takes to dismiss the case for forum non conveniens, we will have done little to enforce the standards of the law of nations.
This is not to suggest that the TVPA has nullified, or even significantly diminished, the doctrine of forum non conveniens. The statute has, however, communicated a policy that such suits should not be facilely dismissed on the assumption that the ostensibly foreign controversy is not our business. The TVPA in our view expresses a policy favoring our courts' exercise of the jurisdiction conferred by the ATCA in cases of torture unless the defendant has fully met the burden of showing that the Gilbert factors “tilt[ ] strongly in favor of trial in the foreign forum.” R. Maganlal & Co., 942 F.2d at 167.
(3) The Forum Non Conveniens Analysis in this Case
We turn to the analysis of the forum non conveniens factors in their application to this case. We believe the rule of law applied by the district court was faulty, as noted above, in the following respects: (a) The district court counted against retention of jurisdiction that the plaintiffs were not residents of the Southern District of New York while failing to count in favor of retention that two of the plaintiffs were residents of the United States, and (b) the court failed to count in favor of retention the interest of the United States, as expressed in the TVPA, in providing a forum for the adjudication of claims of torture in violation of the standards of international law. Furthermore, the Magistrate Judge, whose findings were adopted by the district court, gave no consideration to the very substantial expense and inconvenience (perhaps fatal to the suit) that would be imposed on the impecunious plaintiffs by dismissal in favor of a British forum, and the inconvenience to the defendants that ultimately justified the dismissal seems to us to have been minimal.
Ordinarily, the conclusions of the district court in deciding whether to dismiss for forum non conveniens are given substantial deference and are not overturned except on a finding of abuse of discretion. See, e.g., Peregrine Myanmar Ltd., 89 F.3d at 46. On the other hand, where the district court has not applied the correct rule of law, the same deference does not apply. See, e.g., Guidi, 224 F.3d at 145 (appellate review encompasses “ ‘whether the district court reached an erroneous conclusion on ․ the law’ ”) (quoting R. Maganlal & Co., 942 F.2d at 167).
The issue of forum non conveniens is not settled by adding to the mix the considerations favoring retention arising from the U.S. residence of two of the plaintiffs and the policy expressed in the TVPA favoring adjudication of claims of torture in violation of international law. If the defendants advanced substantial interests supporting dismissal in favor of a British forum we would either remand to the district court for reconsideration or, if the defendants interests were sufficiently substantial, sustain the dismissal notwithstanding our identification of interests in favor of retention that the district court did not consider.
In our view, however, the defendants have offered only minimal considerations in support of an English forum. This is not a case like Piper where there is an obviously better suited foreign forum for the adjudication of the dispute. See Piper, 454 U.S. at 238-39, 102 S.Ct. 252 (dismissal of case so that it could be litigated in Scotland, site of plane crash). Nor does it involve substantial physical evidence that is difficult or expensive to transport. Cf., e.g., id. at 242-43, 102 S.Ct. 252 (plane crash in Scotland); In re Union Carbide, 809 F.2d 195 (environmental disaster in India). For any nonparty witnesses, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of a trial in England.
In arguing that England is a more appropriate forum, defendants rely upon arguments such as the inconvenience of shipping documents from England to the United States and the additional cost for a Nigerian witness of flying to New York rather than London. These considerations are indeed a legitimate part of the forum non conveniens analysis, but (a) the defendants have not demonstrated that these costs are excessively burdensome, especially in view of the defendants' vast resources, cf. Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 969 (2d Cir.1980) (Newman, J., concurring) (“It will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit.”), and (b) the additional cost and inconvenience to the defendants of litigating in New York is fully counterbalanced by the cost and inconvenience to the plaintiffs of requiring them to reinstitute the litigation in England-especially given the plaintiffs' minimal resources in comparison to the vast resources of the defendants. These considerations cannot justify overriding the plaintiffs' choice of forum.
Defendants argue that England has a public interest in adjudicating this action. In particular, they argue that (1) Shell Transport is a British corporation whose liability for the actions of its subsidiary is likely to be governed by British law; and (2) Nigeria was at the time of the actions in question a member of the Commonwealth of Nations. Although these factors do bear consideration, they are not overriding. To the same extent that England may have an interest in adjudicating matters affecting a British corporation, the United States courts have an interest in adjudicating matters affecting its residents. Also, while one defendant is a British corporation whose actions are governed by British law, the second defendant is not British, but Dutch. The fact that Nigeria was at the time a member of the voluntary consortium of nations constituting the Commonwealth is of no particular significance.
In order to be granted dismissal based on forum non conveniens, the defendants bear the burden of establishing that the Gilbert factors “tilt[ ] strongly in favor of trial in the foreign forum.” R. Maganlal & Co., 942 F.2d at 167. We believe they have failed as a matter of law to meet this burden. The factors weighing against dismissal include (1) the substantial deference courts are required to give to the plaintiff's choice of forum, (2) the enormous burden, expense, and difficulty the plaintiffs would suffer if required to begin the litigation anew in England,13 (3) the policy favoring our court's retention of such suits brought by plaintiffs who are residents of the United States, and (4) the policy expressed in the TVPA favoring adjudication of claims of violations of international prohibitions on torture. These factors are more than sufficient to overcome the defendants' weak claim for dismissal based on forum non conveniens.14
We therefore remand to the district court for further proceedings. Because the district court dismissed for forum non conveniens, it never considered the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.15 We remand for consideration of that motion.
CONCLUSION
For the foregoing reasons, the judgment of the district court dismissing for forum non conveniens is REVERSED, and the case is REMANDED for further proceedings.
FOOTNOTES
1. For purposes of this opinion relating to jurisdiction and forum non conveniens, we assume the truth of the allegations (while implying no views on the truth or falsity of the allegations).
2. Shares of Royal Dutch are traded directly on the New York Stock Exchange. Shell Transport's shares are traded indirectly in the United States; investors may purchase American Depository Receipts (ADR's) for shares of Shell, rather than shares themselves.
3. Owens Wiwa has since moved to Canada.
4. Because we hold that jurisdiction is properly exercised over the defendants on the basis of the activities of the Investor Relations Office, we do not reach any of the other jurisdictional issues raised by the plaintiffs. We express no views on the merits of any of their alternative arguments.
5. Grapsi testified that 100 of the 140 attendees at a December 1996 investor relations meeting for financial writers and members of the international community came from New York and only five came from other locations in the United States.
6. On the doctrine of double actionability, the parties refer primarily to Phillips v. Eyre, 1870 L.R. 6 Q.B. 1, and Dicey & Morris, Conflict of Laws 1480 et seq. (12th ed.1993).
7. On transmissibility, the parties refer to Dicey & Morris, supra note 6, at 1521.
8. The parties cite to numerous sources discussing the contours of the act of state doctrine. See, e.g., Luthor v. Sagor 1921 3 K.B. 532, 548; Buttes Gas and Oil Co. v. Hammer (Nos. 2 & 3), 1981 3 All ER 616; Dicey & Morris, supra note 6, at 108-11, 996-97; Dame Rosalyn Higgins, Problems & Process 212 (1994). Subsequent to the briefing in this case, the House of Lords decided the twin appeals arising out of the arrest of Chilean Senator and former General Augusto Pinochet. The parties submitted a copy of that decision and letter briefs debating its meaning. See generally Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet and Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (House of Lords Mar. 24, 1999) (appeals from divisional courts of the Queen's Bench Division).
9. We read Guidi as allowing for the possibility that, under certain circumstances, the public interest factors favoring dismissal might (by themselves or in combination with inconvenience to the defendant not quite rising to the level of “oppressiveness and vexation”) be strong enough to justify dismissal, notwithstanding the absence of “oppressiveness and vexation.” See Guidi, 224 F.3d at 146 (stating the forum non conveniens dismissal against a U.S. citizen seeking to invoke a U.S. forum may be appropriate if defendant presents a “clear showing of facts which ․ make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems” (quoting Koster, 330 U.S. at 524, 67 S.Ct. 828)). Furthermore, Guidi's focus on the balancing of defendant's inconvenience against plaintiff's implicitly recognizes that, depending on the particular circumstances, the degree of inconvenience that dismissal would impose on a U.S. resident will vary.
10. The original purposes of the ATCA remain the subject of some controversy. The Act has no formal legislative history. In the most learned exposition of the statute's original purposes, Judge Edwards suggested that the statute was originally motivated by a desire to insure that claims by an alien against U.S. citizens or for incidents occurring in the United States were litigated in federal court rather than state court, so as to prevent the states from mishandling such cases and creating international incidents. See Tel-Oren, 726 F.2d at 782-83 (Edwards, J., concurring). Some scholars have suggested that the Act's original purpose may have been even narrower. For example, one 1995 article suggests that the statute was intended to remedy a single problem: torts committed by the crews of vessels in the course of stopping and boarding ships suspected of aiding the enemy in a time of war. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L.Rev. 445 (1995). Whatever the intent of the original legislators (a matter that is forever hidden from our view by the scarcity of relevant evidence), the text of the Act seems to reach claims for international human rights abuses occurring abroad. We reached the conclusion that such claims are properly brought under the Act in Filartiga, 630 F.2d at 880; Congress ratified our conclusion by passing the Torture Victim Protection Act, see H.R.Rep. No. 102-367, at 4 (1991); reprinted in 1992 U.S.C.C.A.N. 84, 86; and we have since reaffirmed our conclusion, see, e.g., Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir.1996) (opinion denying rehearing) (rejecting argument that new scholarly evidence precludes broad interpretation of ATCA). Filartiga remains the leading case interpreting the ATCA. As Judge Newman stated four years ago, “[w]e have neither the authority nor the inclination to retreat from that ruling.” Id.
11. “Extra judicial killing” is defined as “a deliberated killing” not authorized by the judgment of a court “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 28 U.S.C. § 1350 App. In this opinion, we use the word “torture” to include both torture and “extra judicial killing,” except where the context makes clear the more limited meaning is intended.
12. Plaintiffs argue that these statutes also raise a related but distinct U.S. policy interest in insuring that claims arising out of human rights abuses are adjudicated according to the standards of international law. In arguing for this principle, they assume that the law of nations necessarily provides the substantive standards for evaluating claims brought under the ATCA in situations where the underlying claims involve human rights abuses. While they may well be right that such a principle is implicit in the ATCA, the federal courts have never definitively resolved this choice-of-law question. Compare Xuncax, 886 F.Supp. at 180-83 (holding that international law provides substantive law for ATCA cases) with Tel-Oren, 726 F.2d at 777, 781-82 (Edwards, J., concurring) (suggesting that, while international law triggers jurisdiction under ATCA, tort laws of forum state might provide substantive causes of action), and In re Estate of Ferdinand Marcos, 978 F.2d at 503 (9th Cir.1992) (approving district court procedure that based jurisdiction on international law but applied tort law of state where underlying events occurred); see also Filartiga, 630 F.2d at 889 (holding that ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action). Because our decision regarding the forum non conveniens dismissal is based on other grounds, we need not reach this question.
13. As the Magistrate Judge noted in his report, the plaintiffs lack meaningful financial resources and will be substantially burdened by the expense of bringing this litigation in England. Nonetheless, he concluded that the plaintiffs' lack of resources is a “neutral factor” because the plaintiffs have not established that it will be less expensive to try the case in New York than in England. The record, however, contains substantial evidence that trial in New York will be less expensive and burdensome for the plaintiffs. The plaintiffs have already obtained excellent pro bono counsel to litigate this matter in the courts of the United States; there is no guarantee that they will be able to obtain equivalent representation in England without incurring substantial expenses. Two of the plaintiffs lived in the United States when the action was brought. The cost and difficulties of relocating themselves to England for the duration of the litigation is likely to be onerous. Finally, the plaintiffs and their attorneys have already made substantial investments of time, money, and energy in pursuing this litigation in the U.S. courts. Requiring the plaintiffs to replicate them in the British courts would substantially increase their burden. For these reasons, we believe that the Magistrate Judge should have given greater consideration to the burden on the impecunious plaintiffs, rather than focusing his consideration of the convenience factors almost entirely on the convenience of the defendants.
14. The other considerations favoring retention of jurisdiction sufficiently outweigh the defendants' claim for dismissal that we would reach the same result without consideration of the policy interest we have found to be expressed by the TVPA.
15. Defendants also urged below that the Netherlands was an adequate alternative forum and more convenient than the United States. Although the district court did not rule on the defendants' request for dismissal in favor of a Dutch forum, we need not remand for consideration of this question, because dismissal in favor of trial in the Netherlands would share the disadvantages that have led us to reject the dismissal in favor of trial in England.
LEVAL, Judge:
22. 10-388 Huber v. New Jersey Dept. of Environmental Protection (03/21/11
4 United States Supreme Court
1 ROBERT HUBER ET UX. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, (2011)
2 No. 10-388
3 Argued: Decided: March 21, 2011
[pic]
The petition for a writ of certiorari is denied.
Statement of JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, respecting the denial of certiorari.
Our cases recognize a limited exception to the Fourth Amendment's warrant requirement for searches of businesses in "closely regulated industries." See, e.g., New York v. Burger, 482 U. S. 691, 699-703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the "expectation of privacy in commercial premises" is significantly less than the "expectation in an individual's home." Id., at 700. And where a business operates in an industry with a "long tradition of close government supervision"--liquor dealers and pawnbrokers are classic examples--the expectation of privacy becomes "particularly attenuated." Ibid. (internal quotation marks omitted).
In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber's backyard. No. A-5874-07T3, 2010 WL 173533, *9-*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers' residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B-1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers' yard "directly under the regulatory arm" of the State "just as much" as if the yard had been involved in a "regulated industry." 2010 WL 173533, *10.
This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today's denial of certiorari is appropriate. See this Court's Rule 10. It does bear mentioning, however, that "denial of certiorari does not constitute an expression of any opinion on the merits." Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).
23. 04-1527 S. D. Warren Co. v. Maine Bd. of Environmental Protection (5/15/06)
S. D. Warren Co. v. Maine Bd. of Environmental Protection,
547 U.S. 370 (2006)
Annotate this Case
OpinionPDF
• Syllabus |
• Opinion (David H. Souter)
OPINION OF THE COURT
S. D. WARREN CO. V. MAINE BD. OF ENVIRONMENTALPROTECTION
547 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 04-1527
S. D. WARREN COMPANY, PETITIONER v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.
on writ of certiorari to the supreme judicial court of maine
[May 15, 2006]
Justice Souter delivered the opinion of the Court.*
The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.
I
The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment.
It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. §799, after a review that looks to environmental issues as well as the rising demand for power, §797(e).
Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, §103, 84 Stat. 108. Today, this requirement can be found in §401 of the Clean Water Act, 86 Stat. 877, codified at 33 U. S. C. §1341: “Any applicant for a Federal license or permit to conduct any activity … which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates … .” §1341(a)(1).
“Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.”[Footnote 1] §1341(d).
In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.
The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine’s administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State’s Cumberland County Superior Court. That court rejected Warren’s argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. S. D. Warren Co. v. Board of Environmental Protection, 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. ___ (2005), and now affirm as well.
II
The dispute turns on the meaning of the word “discharge,” the key to the state certification requirement under §401.[Footnote 2] The Act has no definition of the term, but provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.”[Footnote 3] 33 U. S. C. §1362(16). It does define “discharge of a pollutant” and “discharge of pollutants,” as meaning “any addition of any pollutant to navigable waters from any point source.” §1362(12). But “discharge” presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994).
When it applies to water, “discharge” commonly means a “flowing or issuing out,” Webster’s New International Dictionary 742 (2d ed. 1949); see also ibid. (“[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay”), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam’s “ ‘multiport’ structure, which will permit discharge of water from any of five levels”); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who “ ‘take … water out of the stream which has been discharged from the reservoir’ ”); United States v. Arizona, 295 U. S. 174, 181 (1935) (“Parker Dam will intercept waters discharged at Boulder Dam”).
In fact, this understanding of the word “discharge” was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington’s authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this:
“There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.” Id., at 711.
The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State’s §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the “discharge of water” from the dam was a discharge within the ambit of §401. Ibid. And although the Court’s opinion made no mention of the dam as adding anything to the water, the majority’s use of the phrase “discharge of water” drew no criticism from the dissent, which specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing out,’ or ‘something that is emitted.’ ” Id., at 725 (opinion of Thomas, J.) (quoting Webster’s Ninth New Collegiate Dictionary 360 (1991)).
In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read “discharge” as having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA, Water Quality Standards Handbook §7.6.3, p. 7–10 (2d ed. 1994) (“EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act”); FPL Energy Maine Hydro LLC, 111 FERC ¶61,104, P. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress “used the term ‘discharge’ as nothing more than a shorthand expression for ‘discharge of a pollutant or pollutants’ ”).[Footnote 4] Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. ___, ___ (2006) (slip op., at 11) (“Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved”); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of “discharge” in this way confirms our understanding of the everyday sense of the term.
III
Warren makes three principal arguments for reading the term “discharge” differently from the ordinary way. We find none availing.
A
The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the “words grouped in a list should be given related meaning,” Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”).
Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U. S. C. §1362(16). Warren emphasizes that the “include[d]” terms, pollutant discharges, are themselves defined to require an “addition” of pollutants to water. §1362(12). Since “discharge” pure and simple is keeping company with “discharge” defined as adding one or more pollutants, Warren says “discharge” standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.[Footnote 5]
The problem with Warren’s argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92–911, p. 125 (1972) (“[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and a careful reading of the definitions … is recommended. Of particular significance [are] the words ‘discharge of pollutants’ ”).
B
Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to “continu[e] the authority of the State … to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” S. Rep. No. 92–414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity “may” result in a discharge (“discharge” of course being without any qualifiers here), 33 U. S. C. §1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra.
Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92–911, at 124–125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U. S. C. §1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. §1362(12).
The question in Miccosukee was whether a pump between a canal and an impoundment produced a “discharge of a pollutant” within the meaning of §402, see 541 U. S., at 102–103, and the Court accepted the shared view of the parties that if two identified volumes of water are “simply two parts of the same water body, pumping water from one into the other cannot constitute an ‘addition’ of pollutants,” id., at 109. Miccosukee was thus concerned only with whether an “addition” had been made (phosphorous being the substance in issue) as required by the definition of the phrase “discharge of a pollutant”; it did not matter under §402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.[Footnote 6]
C
Warren’s third argument for avoiding the common meaning of “discharge” relies on the Act’s legislative history, but we think that if the history means anything it actually goes against Warren’s position. Warren suggests that the word “includes” in the definition of “discharge” should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with “thermal discharges.” As Warren describes it, several Members of Congress recognized that “heat is not as harmful as what most of us view as ‘pollutants,’ because it dissipates quickly in most bodies of receiving waters,” 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93–1, p. 273 (1973) (remarks of Cong. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under §402, but they also wanted to ensure that thermal discharges remained within the scope of §401 and so sought to include them expressly in the general provision covering “discharge.” See id., at 1069–1070, 1071. The proposed definition read, “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge.” Id., at 1071.
Of course, Congress omitted the reference to “thermal discharge,” and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, §502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words “thermal discharge” from 33 U. S. C. §1362(16) and carelessly left in the word “includes.” Thus, Warren argues, there is no reason to assume that describing “discharge” as including certain acts was meant to extend the reach of §401 beyond acts of the kind specifically mentioned;[Footnote 7] the terminology of §401 simply reflects a failed effort to narrow the scope of §402.
This is what might be called a lawyer’s argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under §402. It is simply speculation, though, to say that the word “includes” was left in the description of a “discharge” by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left “thermal discharge” as an included subclass of a “discharge” under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition.
Warren’s theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms “discharge” and “discharge of pollutants” deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of “discharge” because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress’s motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29–30 (1997) (if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)).
IV
Warren’s arguments against reading the word “discharge” in its common sense fail on their own terms.[Footnote 8] They also miss the forest for the trees.
Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a); see also PUD No. 1, 511 U. S., at 714, the “national goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33 U. S. C. §1251(a)(2). To do this, the Act does not stop at controlling the “addition of pollutants,” but deals with “pollution” generally, see §1251(b), which Congress defined to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” §1362(19).
The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause changes in the movement, flow, and circulation of a river … caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish.” Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with “immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe.” Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal:
“The record in this case demonstrates that Warren’s dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river.” In re S. D. Warren Co., Maine Board of Environmental Protection (2003), in App. to Pet. for Cert. A–49.
Changes in the river like these fall within a State’s legitimate legislative business, and the Clean Water Act provides for a system that respects the States’ concerns. See 33 U. S. C. §1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”); §1256(a) (federal funds for state efforts to prevent pollution); see also §1370(States may impose standards on the discharge of pollutants that are stricter than federal ones).
State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now §401 was first proposed:
“No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970).
These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” 33 U. S. C. §1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid.
Reading §401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed.
It is so ordered.
* Justice Scalia joins all but Part III–C of this opinion.
Footnote 1
The statutes cross-referenced go to effluent limitations and other limitations, 33 U. S. C. §§1311, 1312, standards of performance, §1316, and toxic effluent standards, §1317. As we have explained before, “state water quality standards adopted pursuant to §303 [of the Clean Water Act, 33 U. S. C. §1313,] are among the ‘other limitations’ with which a State may ensure compliance through the §401 certification process.” PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 713 (1994).
Footnote 2
No one disputes that the Presumpscot River is a navigable water of the United States.
Footnote 3
The term “pollutant” is defined in the Act to mean “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U. S. C. §1362(6).
Footnote 4
Warren relies on a document from the EPA as a counterexample of the EPA’s position in this regard. See Memorandum from Ann R. Klee, EPA General Counsel et al., to Regional Administrators, regarding “Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers” (Aug. 5, 2005), available at (as visited Apr. 13, 2006, and available in Clerk of Court’s case file). The memorandum does not help Warren, however; it interprets §402 of the Clean Water Act, not §401, and construes the statutory phrase “discharge of a pollutant,” which, as explained below, implies a meaning different under the statute from the word “discharge” used alone. The memorandum, in fact, declares that “[i]t does not address any … terms under the statute other than ‘addition.’ ” Id., at 18.
Footnote 5
We note that the Supreme Judicial Court of Maine accepted the assertion that “[a]n ‘addition’ is the fundamental characteristic of any discharge.” 2005 Me 27, ¶11, 868 A. 2d 210, 215. It then held that Warren’s dams add to the Presumpscot River because the water “los[es its] status as waters of the United States” when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A. 2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 69 (1913) (“[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable”). Thus, though we affirm the Maine judgment, we do so on different reasoning.
Footnote 6
The fact that the parties in Miccosukee conceded that the water being pumped was polluted does not transform the Court’s analysis from one centered on the word “addition” to one centered on the word “discharge.” Before Miccosukee, one could have argued that transferring polluted water from a canal to a connected impoundment constituted an “addition.” Miccosukee is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a “discharge.”
Likewise, we are not persuaded by Warren’s claim that the word “into” somehow changes the meaning of the word “discharge” so as to require an addition. See Reply Brief for Petitioner 1–2 (“However one might read the lone word ‘discharge’ by itself, the complete statutory phrase ‘discharge into the navigable waters’ entails the introduction of something into the waters”). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition “into” was used without connoting an addition in the Miccosukee analogy cited by Warren. See 541 U. S., at 110 (“[I]f one takes a ladle of soup from a pot … and pours it back into the pot, one has not ‘added’ soup or anything else to the pot” (internal quotation marks and brackets omitted)).
Footnote 7
Warren is hesitant to follow its own logic to completion by simply claiming that §401 covers nothing but what §502(16) mentions, the discharge of a pollutant or pollutants.
Footnote 8
Warren briefly makes another argument for disregarding the plain meaning of the word “discharge,” relying on §511(c)(2) of the Clean Water Act, 33 U. S. C. §1371(c)(2). This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4321 et seq. NEPA “imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Department of Transportation v. Public Citizen, 541 U. S. 752, 756–757 (2004). Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency “authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant” to review “any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§401] of this title.” 33 U. S. C. §1371(c)(2). Warren argues that reading §401 to cover discharges generally would preclude duplicative NEPA review of certifications involving pollutant discharges, but allow such review of those involving nonpollutant discharges.
But Warren overlooks the fact that “discharge of a pollutant” is used in §511(c)(2) in the course of identifying the agency, not the activity to be certified. Whether a §401 certification involves an activity that discharges pollutants or one that simply discharges, FERC (as an agency that may be described, always, as one with “author[ity] to license or permit the conduct of any activity which may result in the discharge of a pollutant,” ibid.) may not review it. Thus, nothing in §511(c)(2) is disturbed by our holding that hydroelectric dams require §401 state certifications. It is still the case that, when a State has issued a certification covering a discharge that adds no pollutant, no federal agency will be deemed to have authority under NEPA to “review” any limitations or the adequacy of the §401 certification.
24. 08-1151 Stop The Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (06/17/2010)
SUPREME COURT OF THE UNITED STATES
STOP THE BEACH RENOURISHMENT, INC. v . FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.
certiorari to the supreme court of florida
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No. 08–1151. Argued December 2, 2009—Decided June 17, 2010
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Florida owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore. The mean high-water line is the ordinary boundary between private beachfront, or littoral property, and state-owned land. Littoral owners have, inter alia, rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive accretions and relictions (collectively, accretions) to the littoral property. An accretion occurs gradually and imperceptibly, while a sudden change is an avulsion. The littoral owner automatically takes title to dry land added to his property by accretion. With avulsion, however, the seaward boundary of littoral property remains what it was: the mean high-water line before the event. Thus, when an avulsion has added new land, the littoral owner has no right to subsequent accretions, because the property abutting the water belongs to the owner of the seabed (ordinarily the State).
Florida’s Beach and Shore Preservation Act establishes procedures for depositing sand on eroded beaches (restoration) and maintaining the deposited sand (nourishment). When such a project is undertaken, the State entity that holds title to the seabed sets a fixed “erosion control line” to replace the fluctuating mean high-water line as the boundary between littoral and state property. Once the new line is recorded, the common law ceases to apply. Thereafter, when accretion moves the mean high-water line seaward, the littoral property remains bounded by the permanent erosion-control line.
Respondents the city of Destin and Walton County sought permits to restore 6.9 miles of beach eroded by several hurricanes, adding about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). Petitioner, a nonprofit corporation formed by owners of beachfront property bordering the project (hereinafter Members) brought an unsuccessful administrative challenge. Respondent the Florida Department of Environmental Protection approved the permits, and this suit followed. The State Court of Appeal concluded that the Department’s order had eliminated the Members’ littoral rights (1) to receive accretions to their property and (2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking and would require an additional administrative requirement to be met, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question whether the Act unconstitutionally deprived the Members of littoral rights without just compensation. The State Supreme Court answered “no” and quashed the remand, concluding that the Members did not own the property supposedly taken. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendment s; rehearing was denied.
Held: The judgment is affirmed.
998 So. 2d 1102, affirmed.
Justice Scalia delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendment s. Pp. 24–29.
(a) Respondents’ arguments that petitioner does not own the property and that the case is not ripe were not raised in the briefs in opposition and thus are deemed waived. Pp. 24–25.
(b) There can be no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing cannot be made. Two core Florida property-law principles intersect here. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Second, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner’s contact with the water. Prior Florida law suggests that there is no exception to this rule when the State causes the avulsion. Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for ownership purposes. The right to accretions was therefore subordinate to the State’s right to fill. Pp. 25–27.
(c) The decision below is consistent with these principles. Cf. Lucas v. South Carolina Coastal Council , 505 U. S. 1003 . It did not abolish the Members’ right to future accretions, but merely held that the right was not implicated by the beach-restoration project because of the doctrine of avulsion. Relying on dicta in the Florida Supreme Court’s Sand Key decision, petitioner contends that the State took the Members’ littoral right to have the boundary always be the mean high-water line. But petitioner’s interpretation of that dictum contradicts the clear law governing avulsion. One cannot say the Florida Supreme Court contravened established property law by rejecting it. Pp. 27–29.
Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Parts II and III that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause. Pp. 7–24.
(a) Though the classic taking is a transfer of property by eminent domain, the Clause applies to other state actions that achieve the same thing, including those that recharacterize as public property what was previously private property, see Webb’s Fabulous Pharmacies, Inc. v. Beckwith , 449 U. S. 155 . The Clause is not addressed to the action of a specific branch or branches. It is concerned simply with the act, not with the governmental actor. This Court’s precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. See PruneYard Shopping Center v. Robins, 447 U. S. 74 , Webb’s Fabulous Pharmacies , supra. Pp. 7–20.
(b) For a judicial taking, respondents would add to the normal takings inquiry the requirement that the court’s decision have no “fair and substantial basis.” This test is not obviously appropriate, but it is no different in this context from the requirement that the property owner prove an established property right. Respondents’ additional arguments—that federal courts lack the knowledge of state law required to decide whether a state judicial decision purporting to clarify property rights has instead taken them; that common-law judging should not be deprived of needed flexibility; and that applying the Takings Clause to judicial decisions would force lower federal courts to review final state-court judgments, in violation of the Rooker -Feldman doctrine, see Rooker v. Fidelity Trust Co. , 263 U. S. 413 , District of Columbia Court of Appeals v. Feldman , 460 U. S. 462 —are unpersuasive. And petitioner’s proposed “unpredictability test”—that a judicial taking consists of a decision that “constitutes a sudden change in state law, unpredictable in terms of relevant precedents,” Hughes v. Washington , 389 U. S. 290 (Stewart, J., concurring)—is misdirected. What counts is not whether there is precedent for the allegedly confiscatory decision, but whether the property right allegedly taken was well established. Pp. 20–24.
Justice Kennedy, joined by Justice Sotomayor, agreed that the Florida Supreme Court did not take property without just compensation, but concluded that this case does not require the Court to determine whether, or when, a judicial decision determining property owners’ rights can violate the Takings Clause. If and when future cases show that the usual principles, including constitutional ones that constrain the judiciary like due process, are inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented. Pp. 1–10.
Justice Breyer, joined by Justice Ginsburg, agreed that no unconstitutional taking occurred here, but concluded that it is unnecessary to decide more than that to resolve this case. Difficult questions of constitutional law— e.g., whether federal courts may review a state court’s decision to determine if it unconstitutionally takes private property without compensation, and what the proper test is for evaluating whether a state-court property decision enacts an unconstitutional taking—need not be addressed in order to dispose “of the immediate case.” Whitehouse v. Illinois Central R. Co. , 349 U. S. 366 . Such questions are better left for another day. Pp. 1–3.
Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Sotomayor , JJ., joined, and an opinion with respect to Parts II and III, in which Roberts, C. J ., and Thomasand Alito , JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor, J ., joined. Breyer, J ., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Stevens, J., took no part in the decision of the case.
25. 02-658. Alaska Dept. of Environmental Conservation v. EPA (10/8/03)
2 United States Supreme Court
1 ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION v. ENVIRONMENTAL PROTECTION AGENCY et al., (2004)
2 No. 02-658
3 Argued: October 8, 2003 Decided: January 21, 2004
The Clean Air Act's (CAA or Act) Prevention of Significant Deterioration (PSD) program, 42 U. S. C. §7477, was designed to ensure that the air quality in "attainment areas," i.e., areas that are already "clean," will not degrade, see §7470(1). The program bars construction of any major air pollutant emitting facility not equipped with "the best available control technology" (BACT). §7475(a)(4). The Act defines BACT as "an emission limitation based on the maximum degree of [pollutant] reduction ... which the [state] permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility." §7479(3). Two provisions of the Act vest enforcement authority in the Environmental Protection Agency (EPA). Section §113(a)(5) generally authorizes the EPA, when it finds that a State is not complying with a CAA "requirement" governing construction of a pollutant source, to pursue remedial action, including issuance of "an order prohibiting construction." 42 U. S. C. §7413(a). Directed specifically to the PSD program, CAA §167 instructs EPA to "take such measures, including issuance of an order, ... as necessary to prevent the construction" of a major pollutant emitting facility that does not conform to the "requirements" of the program. Because EPA has classified northwest Alaska, the region here at issue, as an attainment area for nitrogen dioxide, the PSD program applies to emissions of that pollutant in the region. No "major emitting facility," including any source emitting more than 250 tons of nitrogen oxides per year, §7479(1), may be constructed or modified unless a PSD permit has been issued for the facility, §7475(a)(1). A PSD permit may not issue unless the proposed facility is subject to BACT for each CAA-regulated pollutant emitted from the facility. §7475(a)(4).
In this case, "the permitting authority" under §7479(3) is Alaska, acting through petitioner, the Alaska Department of Environmental Conservation (ADEC). In 1988, Teck Cominco Alaska, Inc. (Cominco), obtained authorization to operate a zinc concentrate mine in northwest Alaska. The mine is a "major emitting facility" under §7475. Its initial PSD permit authorized five diesel electric generators, MG-1 through MG-5, subject to operating restrictions. Under a second PSD permit issued in 1994, Cominco added a sixth generator, MG-6. In 1996, Cominco initiated a project to expand zinc production by 40% and applied to ADEC for a PSD permit to allow, inter alia, increased electricity generation by MG-5. ADEC preliminarily proposed as BACT for MG-5 an emission control technology known as selective catalytic reduction (SCR), which reduces nitrogen oxide emissions by 90%. Amending its application, Cominco added a seventh generator, MG-17, and proposed, as BACT, an alternative control technology--Low NOx--that achieves a 30% reduction in nitrogen oxide pollutants. In May 1999, ADEC issued a first draft PSD permit and preliminary technical analysis report, concluding that Low NOx was BACT for MG-5 and MG-17. ADEC identified SCR as the most stringent technology then technically and economically feasible. ADEC nevertheless endorsed Cominco's proffered emissions-offsetting alternative of fitting MG-17 and all six existing generators with Low NOx, rather than fitting MG-5 and MG-17 with SCR. This proposal, ADEC submitted, would achieve a maximum NOx reduction similar to the reduction SCR could achieve, and was logistically and economically less onerous for Cominco. In July 1999, EPA objected that ADEC had identified SCR as the best control technology, but failed to require it as BACT. ADEC responded with a second draft PSD permit and technical analysis report in September 1999, again finding Low NOx to be BACT for MG-17. ADEC's second draft abandoned that agency's May 1999 emissions-offsetting justification. ADEC further conceded that, lacking data from Cominco, it could make no judgment as to SCR's impact on the mine's operation, profitability, and competitiveness. It nonetheless concluded, contradicting its earlier finding that SCR was technically and economically feasible, that SCR imposed "a disproportionate cost" on the mine. In support of this conclusion, ADEC analogized the mine to a rural utility that would have to increase prices were it required to use SCR. Protesting that Cominco had not adequately demonstrated site-specific factors supporting the assertion of SCR's economical infeasibility, EPA suggested that ADEC include an analysis of SCR's adverse economic impacts on Cominco. Expressing confidentiality concerns, Cominco declined to submit financial data. In December 1999, ADEC issued a final permit and technical analysis report approving Low NOx as BACT for MG-17. Again conceding that it made no judgment as to SCR's impact on the mine's operation, profitability, and competitiveness, ADEC advanced, as cause for its decision, SCR's adverse effect on the mine's unique and continuing impact on the region's economic diversity and the venture's "world competitiveness." ADEC reiterated its rural Alaska utility analogy, and compared SCR's cost to the costs of other, less stringent, control technologies.
EPA then issued three orders to ADEC under §§113(a)(5) and 167 of the Act. Those orders prohibited ADEC from issuing a PSD permit to Cominco without satisfactorily documenting why SCR was not BACT for MG-17. In addition, EPA prohibited Cominco from beginning construction or modification activities at the mine, with limited exceptions. Ruling on ADEC's and Cominco's challenges to these orders, the Ninth Circuit held that EPA had authority under §§113(a)(5) and 167 to determine the reasonableness or adequacy of the State's justification for its BACT decision. The Court of Appeals emphasized that provision of a reasoned justification for a BACT determination by a permitting authority is undeniably a CAA "requirement." EPA had properly exercised its discretion in issuing the three orders, the Ninth Circuit held, because (1) Cominco failed to demonstrate SCR's economical infeasibility, and (2) ADEC failed to provide a reasoned justification for its elimination of SCR as a control option.
Held: CAA authorizes EPA to stop construction of a major pollutant emitting facility permitted by a state authority when EPA finds that an authority's BACT determination is unreasonable in light of 42 U. S. C. §7479(3)'s prescribed guides. Pp. 16-37.
(a) In holding that the EPA orders constituted reviewable "final action" under §7607(b)(1), the Ninth Circuit correctly applied Bennett v. Spear, 520 U. S. 154: To be "final," agency action must "mark the consummation of the agency's decisionmaking process," and must either determine "rights or obligations" or occasion "legal consequences," id., at 177-178. As the Ninth Circuit noted, EPA had asserted its final position on the factual circumstances underpinning the orders. If the orders survived judicial review, Cominco could not escape the practical and legal consequences of any ADEC-permitted construction Cominco endeavored. Pp. 16-17.
(b) EPA may issue a stop construction order, under CAA §§113(a)(5) and 167, if a state permitting authority's BACT selection is not reasonable. Pp. 17-30.
(1) EPA has rationally construed CAA's BACT definition, 42 U. S. C. §7479(3), and the statute's listing of BACT as a "[p]reconstruction requiremen[t]" for the PSD program, §§7475(a)(1) and (4), to mandate a determination of BACT faithful to the statute's definition. EPA urges that state permitting authorities' statutory discretion is constrained by §7479(3)'s strong, normative terms "maximum" and "achievable." EPA accordingly reads §§113(a)(5) and 167 to empower the federal Agency to check a state agency's unreasonably lax BACT designation. In support of this reading, EPA notes that Congress intended the PSD program to prevent significant deterioration of air quality in clean-air areas. Without a federal Agency surveillance role that extends to BACT determinations, EPA maintains, this goal is unlikely to be realized. The Act's legislative history suggests that, absent national guidelines, a State deciding to set and enforce strict clean-air standards may lose existing industrial plants to more permissive States. The legislative history further suggests that without a federal check, new plants will play one State off against another with threats to locate in whichever State adopts the most permissive pollution controls. The Court agrees with EPA's reading of the statutory provisions. EPA's CAA construction is reflected in interpretive guides EPA has several times published. Although an interpretation presented in internal guidance memoranda does not qualify for dispositive force under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865-866, a cogent administrative interpretation nevertheless warrants respect, Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 385. Pp. 17-22.
(2) ADEC's several arguments do not persuade the Court to reject as impermissible EPA's longstanding, consistently maintained interpretation. ADEC argues that CAA's BACT definition, §7479(3), unambiguously assigns to "the permitting authority" alone the decision of the control technology qualifying as "best available." In ADEC's view, EPA's enforcement role is restricted to assuring that the permit contain a BACT limitation. CAA entrusts state authorities with initial responsibility to make BACT determinations because they are best positioned to adjust for local circumstances that might make a technology "unavailable" in a particular area. According state authorities initial responsibility, however, does not signify that there can be no unreasonablestate agency BACT determinations. Congress vested EPA with explicit and sweeping authority to enforce CAA "requirements" relating to the construction and modification of sources under the PSD program, including BACT. Having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, Congress would not have implicitly precluded EPA from verifying a state authority's substantive compliance with the BACT requirement. Nor would Congress have limited EPA to determining whether the state permitting authority had uttered the key words "BACT." The fact that §7475(a)(8) expressly requires EPA approval of a State's BACT determination in a limited category of cases does not mean EPA lacks supervisory authority in all other cases. Sections 113(a)(5) and 167 sensibly do not require EPA approval of all state BACT determinations. Those provisions simply authorize EPA to act in the unusual case in which a state permitting authority has determined BACT arbitrarily. Also unavailing is ADEC's argument that any reasoned justification requirement for a BACT determination may be enforced only through state administrative and judicial processes in order to allow development of an adequate factual record, to ensure EPA carries the burdens of proof, and to promote certainty. The Court declines to read into CAA's silence the unusual requirement that a federal agency's decisions enforcing federal law must be remitted solely to state court. EPA has rationally interpreted the BACT provisions and its own §§113(a)(5) and 167 enforcement powers not to require recourse to state processes before stopping a facility's construction. Nor is the Court persuaded by ADEC's practical concerns. There is no reason to conclude that an appropriate record cannot be developed to allow informed federal-court review when EPA disputes a BACT decision's reasonableness. In this very case, the Ninth Circuit ordered EPA to submit a complete administrative record. After EPA did so, all the parties agreed to the record's adequacy. As to the burdens of production and persuasion, the Court holds that EPA bears both burdens in a challenge to an EPA stop-construction order as well as in an EPA-initiated civil action. The underlying question a reviewing court must answer is the same in either case: Was the BACT determination unreasonable given the statutory guides and the state administrative record. Nor does the Court find compelling the suggestion that, if state courts are not the exclusive judicial arbiters, EPA will be free to invalidate a BACT determination months or years after a permit issues. This case involves preconstruction orders issued by EPA, not postconstruction federal directives. EPA itself regards it as imperative to act on a timely basis. Courts are also less likely to require new sources to accept more stringent permit conditions the further planning and construction have progressed. Pp. 22-30.
(c) In this case, EPA properly exercised its statutory authority under §§113(a)(5) and 167 in finding that ADEC's acceptance of Low NOx as BACT for MG-17 lacked evidentiary support. EPA's orders, therefore, were neither arbitrary nor capricious. Pp. 30-36.
(1) The Court considers whether EPA's finding was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the applicable review standard set forth in the APA, 5 U. S. C. §706(2)(A). While EPA's three skeletal orders were not composed with ideal clarity, they properly ground EPA's BACT determination when read together with EPA's accompanying explanatory correspondence. See Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286. As the Ninth Circuit determined, EPA validly issued stop orders because ADEC's BACT designation did not qualify as reasonable in light of statutory guides. In the May 1999 draft permit, ADEC first concluded that SCR was the most stringent emission-control technology that was both technically and economically feasible. That technology should have been designated BACT absent considerations justifying a conclusion that SCR was not achievable in this case. ADEC, however, selected Low NOx as BACT based on Cominco's emissions-offsetting suggestion. In September and December 1999, ADEC again rejected SCR as BACT but no longer relied on that suggestion. Rather, ADEC candidly stated that it aimed to support Cominco's project and its contributions to the region. ADEC's selection of Low NOx thus rested squarely and solely on SCR's "disproportionate cost." EPA rightly concluded that ADEC's switch from finding SCR economically feasible in May 1999 to finding SCR economically infeasible in September 1999 had no factual basis in the record. ADEC forthrightly conceded it was disarmed from reaching a judgment on SCR's economic impact on the mine by Cominco's refusal to provide relevant financial data. No record evidence suggests that the mine, were it to use SCR, would be obliged to cut personnel or raise zinc prices. Having acknowledged that it lacked information needed to judge SCR's impact on the mine's operation, profitability, or competitiveness, ADEC could not simultaneously proffer threats to the mine's operation and competitiveness as reasons for declaring SCR economically infeasible. Nor has ADEC otherwise justified its choice. To bolster its assertion that SCR was too expensive, ADEC invoked cost figures discussed in four BACT determinations made in regard to diesel generators used for primary power production. ADEC itself, however, had previously found SCR's per-ton cost to be well within what ADEC and EPA consider economically feasible. No reasoned explanation for ADEC's retreat from this position appears in the permit ADEC issued. ADEC's basis for selecting Low NOx thus reduces to a readiness to support Cominco's project and its contributions to the region. This justification, however, hardly meets ADEC's own standard of a source-specific economic impact that demonstrates SCR to be inappropriate as BACT. ADEC's justification that lower aggregate emissions would result from Cominco's agreement to install Low NOx on all its generators is also unpersuasive. The final PSD permit did not offset MG-17's emissions against those of the mine's six existing generators. As ADEC recognized in September and December 1999, a State may treat emissions from several pollutant sources as falling under one "bubble" for PSD permit purposes only if every pollutant source so aggregated is part of the permit action. In December 1999, however, only MG-17 figured in the permit action. Pp. 30-35.
(2) This decision does not impede ADEC from revisiting its BACT determination. In letters and orders throughout the permitting process and at oral argument, EPA repeatedly acknowledged that ADEC may yet prepare an appropriate record supporting its selection of Low NOx as BACT. There is no reason not to take EPA at its word. Pp. 35-36.
298 F. 3d 814, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.
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ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETITIONER v.ENVIRON-
MENTAL PROTECTION AGENCY et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 21, 2004]
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Justice Ginsburg delivered the opinion of the Court.
This case concerns the authority of the Environmental Protection Agency (EPA or Agency) to enforce the provisions of the Clean Air Act's (CAA or Act) Prevention of Significant Deterioration (PSD) program. Under that program, no major air pollutant emitting facility may be constructed unless the facility is equipped with "the best available control technology" (BACT). As added by §165, 91 Stat. 735, and amended, 42 U. S. C. §7475(a)(4). BACT, as defined in the CAA, means, for any major air pollutant emitting facility, "an emission limitation based on the maximum degree of [pollutant] reduction ... which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility... ." §7479(3).
Regarding EPA oversight, the Act includes a general instruction and one geared specifically to the PSD program. The general prescription, §113(a)(5) of the Act, authorizes EPA, when it finds that a State is not complying with a CAA requirement governing construction of a pollutant source, to issue an order prohibiting construction, to prescribe an administrative penalty, or to commence a civil action for injunctive relief. 42 U. S. C. §7413(a). Directed specifically to the PSD program, CAA §167 instructs EPA to "take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction" of a major pollutant emitting facility that does not conform to the PSD requirements of the Act. 42 U. S. C. §7477.
In the case before us, "the permitting authority" under §7479(3) is the State of Alaska, acting through Alaska's Department of Environmental Conservation (ADEC). The question presented is what role EPA has with respect to ADEC's BACT determinations. Specifically, may EPA act to block construction of a new major pollutant emitting facility permitted by ADEC when EPA finds ADEC's BACT determination unreasonable in light of the guides §7479(3) prescribes? We hold that the Act confers that checking authority on EPA.
I
A
Congress enacted the Clean Air Amendments of 1970, 84 Stat. 1676, 42 U. S. C. §7401 et seq., in response to "dissatisfaction with the progress of existing air pollution programs." Union Elec. Co. v. EPA, 427 U. S. 246, 249 (1976). The amendments aimed "to guarantee the prompt attainment and maintenance of specified air quality standards." Ibid.; D. Currie, Air Pollution §1.13, p. 1-16 (1981) (summary of 1970 amendments). Added by the 1970 amendments, §§108(a) and 109(a) of the Act require EPA to publish lists of emissions that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare," and to promulgate primary and secondary national ambient air quality standards (NAAQS) for such pollutants. 42 U. S. C. §§7408(a) and 7409(a); Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 462-463 (2001). NAAQS "define [the] levels of air quality that must be achieved to protect public health and welfare." R. Belden, Clean Air Act 6 (2001). The Agency published initial NAAQS in 1971, Union Elec., 427 U. S., at 251(citing 40 CFR pt. 50 (1975)), and in 1985, NAAQS for the pollutant at issue in this case, nitrogen dioxide. 40 CFR §50.11 (2002).1
Under §110 of the Act, also added in 1970, each State must submit for EPA approval "a plan which provides for implementation, maintenance, and enforcement of [NAAQS]." 42 U. S. C. §7410(a)(1); cf. §7410(c)(1) (EPA shall promulgate an implementation plan if the State's plan is inadequate). Relevant to this case, EPA has approved Alaska's implementation plan. 48 Fed. Reg. 30626 (1983), as amended, 56 Fed. Reg. 19288 (1991); 40 CFR §52.96(a) (2002). To gain EPA approval, a "state implementation plan" (SIP) must "include enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate to meet the applicable [CAA] requirements." 42 U. S. C. §7410(a)(2)(A). While States have "wide discretion" in formulating their plans, Union Elec., 427 U. S., at 250, SIPs must include certain measures Congress specified "to assure that national ambient air quality standards are achieved," 42 U. S. C. §7410(a)(2)(C). Among those measures are permit provisions, §7475, basic to the administration of the program involved in this case, CAA's "Prevention of Significant Deterioration of Air Quality" (PSD) program.
The PSD requirements, enacted as part of 1977 amendments to the Act, Title I, §160 et seq., 91 Stat. 731, "are designed to ensure that the air quality in attainment areas or areas that are already 'clean' will not degrade," Belden, supra, p. 43. See 42 U. S. C. §7470(1) (purpose of PSD program is to "protect public health and welfare from any actual or potential adverse effect which in [EPA's] judgment may reasonably be anticipate[d] to occur from air pollution ... notwithstanding attainment and maintenance of all national ambient air quality standards"). Before 1977, no CAA provision specifically addressed potential air quality deterioration in areas where pollutant levels were lower than the NAAQS. Alabama Power Co. v. Costle, 636 F. 2d 323, 346-347 (CADC 1979). Responding to litigation initiated by an environmental group,2 however, EPA issued regulations in 1974 requiring that SIPs include a PSD program. Id., at 347, and n. 18 (citing 39 Fed. Reg. 42510 (1974)). Three years later, Congress adopted the current PSD program. See S. Rep. No. 95-127, p. 11 (1977) (Congress itself has "a responsibility to delineate a policy for protecting clean air").
The PSD program imposes on States a regime governing areas "designated pursuant to [42 U. S. C. §7407] as attainment or unclassifiable." §7471.3 An attainment area is one in which the air "meets the national primary or secondary ambient air quality standard for [a regulated pollutant]." §7407(d)(1)(A)(ii). Air in an unclassifiable area "cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant." §7407(d)(1)(A)(iii). Northwest Alaska, the region this case concerns, is classified as an attainment or unclassifiable area for nitrogen dioxide, 40 CFR §81.302 (2002), therefore, the PSD program applies to emissions of that pollutant in the region. In 2002, the Agency reported that "[a]ll areas of the country that once violated the NAAQS for [nitrogen dioxide] now meet that standard." EPA, Latest Findings on National Air Quality 7 (Aug. 2003).
Section 165 of the Act, 42 U. S. C. §7475, installs a permitting requirement for any "major emitting facility," defined to include any source emitting more than 250 tons of nitrogen oxides per year, §7479(1). No such facility may be constructed or modified unless a permit prescribing emission limitations has been issued for the facility. §7475(a)(1); see §7479(2)(C) (defining "construction" to include "modification"). Alaska's SIP imposes an analogous requirement. 18 Alaska Admin. Code §50.300(c)(1) (2003). Modifications to major emitting facilities that increase nitrogen oxide emissions in excess of 40 tons per year require a PSD permit. 40 CFR §51.166(b)(23)(i) (2002); 18 Alaska Admin. Code §50.300(h)(3)(B)(ii) (2003).
The Act sets out preconditions for the issuance of PSD permits. Inter alia, no PSD permit may issue unless "the proposed facility is subject to the best available control technology for each pollutant subject to [CAA] regulation ... emitted from ... [the] facility." 42 U. S. C. §7475(a)(4). As described in the Act's definitional provisions, "best available control technology" (BACT) means:
"[A]n emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques ... . In no event shall application of 'best available control technology' result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to section 7411 or 7412 of this title [emission standards for new and existing stationary sources]." §7479(3).
40 CFR §51.166(b)(12) (2002) (repeating statutory definition). Alaska's SIP contains provisions that track the statutory BACT requirement and definition. 18 Alaska Admin. Code §§50.310(d)(3) and 50.990(13) (2003). The State, with slightly variant terminology, defines BACT as "the emission limitation that represents the maximum reduction achievable for each regulated air contaminant, taking into account energy, environmental and economic impacts, and other costs." Ibid. Under the federal Act, a limited class of sources must gain advance EPA approval for the BACT prescribed in the permit. 42 U. S. C. §7475(a)(8).
CAA also provides that a PSD permit may issue only if a source "will not cause, or contribute to, air pollution in excess of any ... maximum allowable increase or maximum allowable concentration for any pollutant" or any NAAQS. §7475(a)(3). Congress left to the Agency the determination of most maximum allowable increases, or "increments," in pollutants. EPA regulations have defined increments for nitrogen oxides. 40 CFR §51.166(c) (2002). Typically, to demonstrate that increments will not be exceeded, applicants use mathematical models of pollutant plumes, their behavior, and their dispersion. Westbrook, Air Dispersion Models: Tools to Assess Impacts from Pollution Sources, 13 Natural Resources & Env. 546, 547-548 (1999).
Among measures EPA may take to ensure compliance with the PSD program, two have special relevance here. The first prescription, §113(a)(5) of the Act, provides that "[w]henever, on the basis of any available information, [EPA] finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources," EPA may "issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies." 42 U. S. C. §7413(a)(5)(A).4 The second measure, §167 of the Act, trains on enforcement of the PSD program; it requires EPA to "take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the [PSD] requirements." §7477.
B
Teck Cominco Alaska, Inc. (Cominco), operates a zinc concentrate mine, the Red Dog Mine, in northwest Alaska approximately 100 miles north of the Arctic Circle and close to the native Alaskan villages of Kivalina and Noatak. App. to Pet. for Cert. 3a; Brief for Petitioner 8; Brief for Respondents 4. The mine is the region's largest private employer. Brief for Petitioner 9. It supplies a quarter of the area's wage base. Ibid. Cominco leases the land from the NANA Regional Corporation, an Alaskan corporation formed pursuant to the Alaska Native Claims Settlement Act, 85 Stat. 688, as amended, 43 U. S. C. §1601 et seq. Brief for NANA Regional Corporation, Inc., as Amicus Curiae 1-2, 4.
In 1988, Cominco obtained authorization to operate the mine, a "major emitting facility" under the Act and Alaska's SIP. App. 106. The mine's PSD permit authorized five 5,000 kilowatt Wartsila diesel electric generators, MG-1 through MG-5, subject to operating restrictions; two of the five generators were permitted to operate only in standby status. Ibid. Petitioner Alaska Department of Environmental Conservation (ADEC) issued a second PSD permit in 1994 allowing addition of a sixth full-time generator (MG-6), removing standby status from MG-2, and imposing a new operational cap that allowed all but one generator to run full time. Ibid.
In 1996, Cominco initiated a project, with funding from the State, to expand zinc production by 40%. Brief for Petitioner 5; Reply Brief for Petitioner 11, n. 9. Anticipating that the project would increase nitrogen oxide emissions by more than 40 tons per year, see supra, at 5, Cominco applied to ADEC for a PSD permit to allow, inter alia, increased electricity generation by its standby generator, MG-5. App. 107-108; App. to Pet. for Cert. 33a. On March 3, 1999, ADEC preliminarily proposed as BACT for MG-5 the emission control technology known as selective catalytic reduction (SCR),5 which reduces nitrogen oxide emissions by 90%. App. 72, 108. In response, Cominco amended its application to add a seventh generator, MG-17, and to propose as BACT an alternative control technology--Low NOx6--that achieves a 30% reduction in nitrogen oxide pollutants. Brief for Respondents 5, and n. 1; App. 84.
On May 4, 1999, ADEC, in conjunction with Cominco's representative, issued a first draft PSD permit and preliminary technical analysis report that concluded Low NOx was BACT for MG-5 and MG-17. Id., at 55-95. To determine BACT, ADEC employed EPA's recommended top-down methodology, id., at 61:
"In brief, the top-down process provides that all available control technologies be ranked in descending order of control effectiveness. The PSD applicant first examines the most stringent--or 'top'--alternative. That alternative is established as BACT unless the applicant demonstrates, and the permitting authority in its informed judgment agrees, that technical considerations, or energy, environmental, or economic impacts justify a conclusion that the most stringent technology is not 'achievable' in that case. If the most stringent technology is eliminated in this fashion, then the next most stringent alternative is considered, and so on." EPA, New Source Review Workshop Manual B2 (Draft Oct. 1990) (hereinafter New Source Review Manual); App. 61-62.7
Applying top-down methodology, ADEC first homed in on SCR as BACT for MG-5, and the new generator, MG-
17. "[W]ith an estimated reduction of 90%," ADEC stated, SCR "is the most stringent" technology. Id., at 79. Finding SCR "technically and economically feasible," id., at 65, ADEC characterized as "overstated" Cominco's cost estimate of $5,643 per ton of nitrogen oxide removed by SCR. Id., at 113. Using Cominco's data, ADEC reached a cost estimate running between $1,586 and $2,279 per ton. Id., at 83. Costs in that range, ADEC observed, "are well within what ADEC and EPA conside[r] economically feasible." Id., at 84. Responding to Cominco's comments on the preliminary permit, engineering staff in ADEC's Air Permits Program pointed out that, according to information Cominco provided to ADEC, "SCR has been installed on similar diesel-fired engines throughout the world." Id., at 102.
Despite its staff's clear view "that SCR (the most effective individual technology) [was] technologically, environmentally, and economically feasible for the Red Dog power plant engines," id., at 103-104, ADEC endorsed the alternative proffered by Cominco. To achieve nitrogen oxide emission reductions commensurate with SCR's 90% impact, Cominco proposed fitting the new generator MG-17 and the six existing generators with Low NOx. Ibid.8 Cominco asserted that it could lower net emissions by 396 tons per year if it fitted all seven generators with Low NOx rather than fitting two (MG-5 and MG-17) with SCR and choosing one of them as the standby unit. Id., at 87. Cominco's proposal hinged on the "assumption ... that under typical operating conditions one or more engines will not be running due to maintenance of standby-generation capacity." Ibid.If all seven generators ran continuously, however, Cominco's alternative would increase emissions by 79 tons per year. Ibid. Accepting Cominco's submission, ADEC stated that Cominco's Low NOx solution "achieve[d] a similar maximum NOx reduction as the most stringent controls; [could] potentially result in a greater NOx reduction; and is logistically and economically less onerous to Cominco." Id., at 87-88.
On the final day of the public comment period, July 2, 1999, the United States Department of the Interior, National Parks Service (NPS), submitted comments to ADEC. App. to Pet. for Cert. 33a; App. 97, 108. NPS objected to the projected offset of new emissions from MG-5 and MG-17 against emissions from other existing generators that were not subject to BACT. Letter from John Notar, NPS Air Resources Division, to Jim Baumgartner, ADEC (June 2, 1999). Such an offset, NPS commented, "is neither allowed by BACT, nor achieves the degree of reduction that would result if all the generators that are subject to BACT were equipped with SCR." Id., at 3. NPS further observed that the proposed production-increase project would remove operating restrictions that the 1994 PSD permit had placed on four of the existing generators--MG-1, MG-3, MG-4, and MG-5. App. to Pet. for Cert. 34a. Due to that alteration, NPS urged, those generators, too, became part of the production-expansion project and would be subject to the BACT
requirement. Ibid.
Following NPS' lead, EPA wrote to ADEC on July 29, 1999, commenting: "Although ADEC states in its analysis that [SCR], the most stringent level of control, is economically and technologically feasible, ADEC did not propose to require SCR... . [O]nce it is determined that an emission unit is subject to BACT, the PSD program does not allow the imposition of a limit that is less stringent than BACT." App. 96-97. A permitting authority, EPA agreed with NPS, could not offset new emissions "by imposing new controls on other emission units" that were not subject to BACT. Id., at 97. New emissions could be offset only against reduced emissions from sources covered by the same BACT authorization. Id., at 285-286. EPA further agreed with NPS that, based on the existing information, BACT would be required for MG-1, MG-3, MG-4, and MG-5. Id., at 97.
After receiving EPA comments, ADEC issued a second draft PSD permit and technical analysis report on September 1, 1999, again finding Low NOx to be BACT for MG-17. Id., at 105-117. Abandoning the emissions-offsetting justification advanced in the May 4 draft permit, ADEC agreed with NPS and EPA that "emission reductions from sources that were not part of the permit action," here MG-1, MG-2, MG-3, MG-4, MG-5, and MG-6, could not be considered in determining BACT for MG-17. Id., at 111; id., at 199 (same).9
ADEC conceded that, lacking data from Cominco, it had made "no judgment ... as to the impact of ... [SCR] on the operation, profitability, and competitiveness of the Red Dog Mine." Id., at 116. Contradicting its May 1999 conclusion that SCR was "technically and economically feasible," see supra, at 10, ADEC found in September 1999 that SCR imposed "a disproportionate cost" on the mine. App. 116. ADEC concluded, on a "cursory review," that requiring SCR for a rural Alaska utility would lead to a 20% price increase, and that in comparison with other BACT technologies, SCR came at a "significantly higher" cost. Ibid. No economic basis for a comparison between the mine and a rural utility appeared in ADEC's technical analysis.
EPA protested the revised permit. In a September 15, 1999, letter, the Agency stated: "Cominco has not adequately demonstrated any site-specific factors to support their claim that the installation of [SCR] is economically infeasible at the Red Dog Mine. Therefore, elimination of SCR as BACT based on cost-effectiveness grounds is not supported by the record and is clearly erroneous." Id., at 127; see id., at 138 (ADEC's record does not support the departure from ADEC's initial view that the costs for SCR were economically feasible).
To justify the September 1, 1999, permit, EPA suggested, ADEC could "include an analysis of whether requiring Cominco to install and operate [SCR] would have any adverse economic impacts upon Cominco specifically." Id., at 127. Stating that such an inquiry was unnecessary and expressing "concerns related to confidentiality," Cominco declined to submit financial data. Id., at 134. In this regard, Cominco simply asserted, without detail, that the company's "overall debt remains quite high" despite continuing profits. Id., at 134-135. Cominco also invoked the need for "[i]ndustrial development in rural Alaska." Id., at 135.
On December 10, 1999, ADEC issued the final permit and technical analysis report. Once again, ADEC approved Low NOx as BACT for MG-17 "[t]o support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region." Id., at 208. ADEC did not include the economic analysis EPA had suggested. Id., at 152-246. Indeed, ADEC conceded again that it had made "no judgment ... as to the impact of ... [SCR's] cost on the operation, profitability, and competitiveness of the Red Dog Mine." Id., at 207. Nonetheless, ADEC advanced, as cause for its decision, SCR's adverse effect on the mine's "unique and continuing impact on the economic diversity of th[e] region" and on the venture's "world competitiveness." Id., at 208. ADEC did not explain how its inferences of adverse effects on the region's economy or the mine's "world competitiveness" could be made without financial information showing SCR's impact on the "operation, profitability, and competitiveness" of the mine. Id., at 207, 299. Instead, ADEC reiterated its rural Alaska utility analogy, and again compared SCR's cost to the costs of other, less stringent, control technologies. Id., at 205-207.
The same day, December 10, 1999, EPA issued an order to ADEC, under §§113(a)(5) and 167 of the Act, 42 U. S. C. §§7413(a)(5) and 7477, prohibiting ADEC from issuing a PSD permit to Cominco "unless ADEC satisfactorily documents why SCR is not BACT for the Wartsila diesel generator [MG-17]." App. to Pet. for Cert. 36a. In the letter accompanying the order, the Agency stated that "ADEC's own analysis supports the determination that BACT is [SCR], and that ADEC's decision in the proposed permit therefore is both arbitrary and erroneous." App. 149.
On February 8, 2000, EPA, again invoking its authority under §§113(a)(5) and 167 of the Act, issued a second order, this time prohibiting Cominco from beginning "construction or modification activities at the Red Dog mine." App. to Pet. for Cert. 49a. A third order, issued on March 7, 2000, superseding and vacating the February 8 order, generally prohibited Cominco from acting on ADEC's December 10 PSD permit but allowed limited summer construction. Id., at 62a-64a. On April 25, 2000, EPA withdrew its December 10 order. App. 300; App. to Pet. for Cert. 6a. Once ADEC issued the permit, EPA explained, that order lacked utility. On July 16, 2003, ADEC granted Cominco a PSD permit to construct MG-17 with SCR as BACT. Letter from Theodore B. Olson, Solicitor General, to William K. Suter, Clerk of the Court (Aug. 21, 2003). Under the July 16, 2003, permit, SCR ceases to be BACT "if and when the case currently pending before the Supreme Court of the United States of America is decided in favor of the State of Alaska." ADEC, Air Quality Construction Permit, Final Technical Analysis Report, Permit No. 9932-AC005, Revision 2, p. 7.
The day EPA issued its first order against Cominco, February 8, 2000, ADEC and Cominco petitioned the Court of Appeals for the Ninth Circuit for review of EPA's orders. App. 11. The Agency initially moved to dismiss, urging that the Court of Appeals lacked subject-matter jurisdiction. In an order released March 27, 2001, the Ninth Circuit concluded that it had adjudicatory authority pursuant to 42 U. S. C. §7607(b)(1), which lodges jurisdiction over challenges to "any ... final [EPA] action" in the Courts of Appeals. Alaska v. United States EPA, 244 F. 3d 748, 750-751.10
The Court of Appeals resolved the merits in a judgment released July 30, 2002. 298 F. 3d 814 (CA9). It held that EPA had authority under §§113(a)(5) and 167 to issue the contested orders, and that the Agency had properly exercised its discretion in doing so. Id., at 820-823. Concerning EPA's authority under §§113(a)(5) and 167, the Court of Appeals observed first that "the question presented is what requirements the state must meet" under the Act to issue a PSD permit, not what the correct BACT might be. Id., at 821 (emphasis in original). Concluding that EPA had "authority to determine the reasonableness or adequacy of the state's justification for its decision," the Court of Appeals emphasized that the "provision of a reasoned justification" by a permitting authority is undeniably a "requirement" of the Act. Ibid. EPA had properly exercised its discretion in issuing the three orders, the Ninth Circuit ultimately determined, because (1) Cominco failed to "demonstrat[e] that SCR was economically infeasible," and (2) "ADEC failed to provide a reasoned justification for its elimination of SCR as a control option." Id., at 823. We granted certiorari, 537 U. S. 1186 (2003), to resolve an important question of federal law, i.e., the scope of EPA's authority under §§113(a)(5) and 167, and now affirm the Ninth Circuit's judgment.
II
ADEC contested EPA's orders under 42 U. S. C. §7607(b)(1), which renders reviewable in the appropriate federal court of appeals any EPA "final action." Before the Ninth Circuit, EPA unsuccessfully urged that its orders were "interlocutory," and therefore unreviewable in court unless and until EPA chose to commence an enforcement action.11 A pre-enforcement contest could be maintained in the Court of Appeals under §7607(b)(1), the Ninth Circuit held, for in the circumstances presented, EPA's actions had the requisite finality.
It was undisputed, the Court of Appeals observed, that EPA had spoken its " 'last word' " on whether ADEC had adequately justified its conclusion that Low NOx was the best available control technology for the MG-17 generator. 244 F. 3d, at 750. Further, EPA's orders effectively halted construction of the MG-17 generator, for Cominco would risk civil and criminal penalties if it defied a valid EPA directive.
In this Court, EPA agrees with the Ninth Circuit's finality determination. See Brief for Respondents 16-20; Tr. of Oral Arg. 43-44. We are satisfied that the Court of Appeals correctly applied the guides we set out in Bennett v. Spear, 520 U. S. 154, 177-178 (1997) (to be "final," agency action must "mark the 'consummation' of the agency's decisionmaking process," and must either determine "rights or obligations" or occasion "legal consequences" (internal quotation marks omitted)). As the Court of Appeals stated, EPA had "asserted its final position on the factual circumstances" underpinning the Agency's orders, 244 F. 3d, at 750, and if EPA's orders survived judicial review, Cominco could not escape the practical and legal consequences (lost costs and vulnerability to penalties) of any ADEC-permitted construction Cominco endeavored, ibid.
No question has been raised here, we note, about the adequacy of EPA's preorder procedures under the Due Process Clause or the Administrative Procedure Act. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 544 (1978) (agencies have authority to "fashion their own rules of procedure," even when a statute does not specify what process to use). Furthermore, in response to ADEC's initial contention that the record was incomplete, the Ninth Circuit gave EPA an opportunity to supplement the record, and thereafter obtained from all parties agreement "that the record as it stood was adequate to resolve [ADEC's review petition]." 298 F. 3d, at 818.
III
A
Centrally at issue in this case is the question whether EPA's oversight role, described by Congress in CAA §§113(a)(5) and 167, see supra, at 7, extends to ensuring that a state permitting authority's BACT determination is reasonable in light of the statutory guides. Sections 113(a)(5) and 167 lodge in the Agency encompassing supervisory responsibility over the construction and modification of pollutant emitting facilities in areas covered by the PSD program. 42 U. S. C. §§7413(a)(5) and 7477. In notably capacious terms, Congress armed EPA with authority to issue orders stopping construction when "a State is not acting in compliance with any [CAA] requirement or prohibition ... relating to the construction of new sources or the modification of existing sources," §7413(a)(5), or when "construction or modification of a major emitting facility ... does not conform to the requirements of [the PSD program]," §7477.
The federal Act enumerates several "[p]reconstruction requirements" for the PSD program. §7475. Absent these, "[n]o major emitting facility ... may be constructed." Ibid. One express preconstruction requirement is inclusion of a BACT determination in a facility's PSD permit. §§7475(a)(1) and (4). As earlier set out, see supra, at 5-6, the Act defines BACT as "an emission limitation based on the maximum degree of reduction of [a] pollutant ... which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [a] facility." §7479(3). Under this formulation, the permitting authority, ADEC here, exercises primary or initial responsibility for identifying BACT in line with the Act's definition of that term.
All parties agree that one of the "many requirements in the PSD provisions that the EPA may enforce" is "that a [PSD] permit contain a BACT limitation." Brief for Petitioner 34; see id., at 22, 25 (same). See also Brief for Respondents 23. It is therefore undisputed that the Agency may issue an order to stop a facility's construction if a PSD permit contains no BACT designation.
EPA reads the Act's definition of BACT, together with CAA's explicit listing of BACT as a "[p]reconstruction requiremen[t]," to mandate not simply a BACT designation, but a determination of BACT faithful to the statute's definition. In keeping with the broad oversight role §§113(a)(5) and 167 vest in EPA, the Agency maintains, it may review permits to ensure that a State's BACT determination is reasonably moored to the Act's provisions. See id., at 24. We hold, as elaborated below, that the Agency has rationally construed the Act's text and that EPA's construction warrants our respect and approbation.
BACT's statutory definition requires selection of an emission control technology that results in the "maximum" reduction of a pollutant "achievable for [a] facility" in view of "energy, environmental, and economic impacts, and other costs." 42 U. S. C. §7479(3). This instruction, EPA submits, cabins state permitting authorities' discretion by granting only "authority to make reasonable BACT determinations," Brief for Respondents 27 (emphasis in original), i.e., decisions made with fidelity to the Act's purpose "to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources," 42 U. S. C. §7470(3). Noting that state permitting authorities' statutory discretion is constrained by CAA's strong, normative terms "maximum" and "achievable," §7479(3),12 EPA reads §§113(a)(5) and 167 to empower the federal Agency to check a state agency's unreasonably lax BACT designation. See Brief for Respondents 27.
EPA stresses Congress' reason for enacting the PSD program--to prevent significant deterioration of air quality in clean-air areas within a State and in neighboring States. §§7470(3), (4); see id., at 33. That aim, EPA urges, is unlikely to be realized absent an EPA surveillance role that extends to BACT determinations. The Agency notes in this regard a House Report observation:
"Without national guidelines for the prevention of significant deterioration a State deciding to protect its clean air resources will face a double threat. The prospect is very real that such a State would lose existing industrial plants to more permissive States. But additionally the State will likely become the target of "economic-environmental blackmail" from new industrial plants that will play one State off against another with threats to locate in whichever State adopts the most permissive pollution controls." H. R. Rep. No. 95-294, p. 134 (1977).
The House Report further observed that "a community that sets and enforces strict standards may still find its air polluted from sources in another community or another State." Id., at 135 (quoting 116 Cong. Rec. 32909 (1970)). Federal agency surveillance of a State's BACT designation is needed, EPA asserts, to restrain the interjurisdictional pressures to which Congress was alert. See Brief for Respondents 33-34, 43; Brief for Vermont et al. as Amici Curiae 12 ("If EPA has authority to ensure a reasonable level of consistency among BACT determinations nationwide, then every State can feel more confident about maintaining stringent standards without fear of losing its current industry or alienating prospective industry.").
The CAA construction EPA advances in this litigation is reflected in interpretive guides the Agency has several times published. See App. 268-269 (1983 EPA PSD guidance memorandum noting the Agency's "oversight function"); id., at 274 (1988 EPA guidance memorandum stating EPA may find a BACT determination deficient if it is "not based on a reasoned analysis"); id., at 281-282 (1993 guidance memorandum stating that "EPA acts to ensure that the state exercises its discretion within the bounds of the law" (internal quotation marks omitted); as to BACT, EPA will not intervene if the state agency has given "a reasoned justification for the basis of its decision" (internal quotation marks omitted)). See also Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia--Prevention of Significant Deterioration Program, 63 Fed. Reg. 13797 (1998) (EPA will "review whether any determination by the permitting authority was made on reasonable grounds properly supported on the record, described in enforceable terms, and consistent with all applicable requirements"). We "normally accord particular deference to an agency interpretation of 'longstanding' duration," Barnhart v. Walton, 535 U. S. 212, 220(2002) (quoting North Haven Bd. of Ed. v. Bell, 456 U. S. 512, 522, n. 12 (1982)), recognizing that "well-reasoned views" of an expert administrator rest on " 'a body of experience and informed judgment to which courts and litigants may properly resort for guidance,' " Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 139-140 (1944)).
We have previously accorded dispositive effect to EPA's interpretation of an ambiguous CAA provision. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865-866 (1984); Union Elec.,529 U. S. 576, 587 (2000) ("Interpretations such as those in ... policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference."); accord, United States v. Mead Corp., 533 U. S. 218, 234 (2001). Cogent "administrative interpretations ... not [the] products of formal rulemaking ... nevertheless warrant respect." Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 385 (2003). We accord EPA's reading of the relevant statutory provisions, §§7413(a)(5), 7470(3), 7470(4), 7475(a)(4), 7477, and 7479(3), that measure of respect.
B
ADEC assails the Agency's construction of the Act on several grounds. Its arguments do not persuade us to reject as impermissible EPA's longstanding, consistently maintained interpretation.
ADEC argues that the statutory definition of BACT, §7479(3), unambiguously assigns to "the permitting authority" alone determination of the control technology qualifying as "best available." Brief for Petitioner 21-26. Because the Act places responsibility for determining BACT with "the permitting authority," ADEC urges, CAA excludes federal Agency surveillance reaching the substance of the BACT decision. Id., at 22-25. EPA's enforcement role, ADEC maintains, is restricted to the requirement "that the permit contain a BACT limitation." Id., at 34.
Understandably, Congress entrusted state permitting authorities with initial responsibility to make BACT determinations "case-by-case." §7479(3). A state agency, no doubt, is best positioned to adjust for local differences in raw materials or plant configurations, differences that might make a technology "unavailable" in a particular area. But the fact that the relevant statutory guides--"maximum" pollution reduction, considerations of energy, environmental, and economic impacts--may not yield a "single, objectively 'correct' BACT determination," id., at 23, surely does not signify that there can be no unreasonable determinations. Nor does Congress' sensitivity to site-specific factors necessarily imply a design to preclude in this context meaningful EPA oversight under §§113(a)(5) and 167. EPA claims no prerogative to designate the correct BACT; the Agency asserts only the authority to guard against unreasonable designations. See 298 F. 3d, at 821 ("the question presented is what requirements the state must meet," not what final substantive decision the State must make (emphasis in original)).13
Under ADEC's interpretation, EPA properly inquires whether a BACT determination appears in a PSD permit, Brief for Petitioner 34, but not whether that BACT determination "was made on reasonable grounds properly supported on the record," 63 Fed. Reg., at 13797. Congress, however, vested EPA with explicit and sweeping authority to enforce CAA "requirements" relating to the construction and modification of sources under the PSD program, including BACT. We fail to see why Congress, having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, would then implicitly preclude the Agency from verifying substantive compliance with the BACT provisions and, instead, limit EPA's superintendence to the insubstantial question whether the state permitting authority had uttered the key words "BACT."
We emphasize, however, that EPA's rendition of the Act's less than crystalline text leaves the "permitting authority" considerable leeway. The Agency acknowledges "the need to accord appropriate deference" to States' BACT designations, Brief for Respondents 43, and disclaims any intention to " 'second guess' state decisions," 63 Fed. Reg., at 13797. Only when a state agency's BACT determination is "not based on a reasoned analysis," App. 274, may EPA step in to ensure that the statutory requirements are honored.14 EPA adhered to that limited role here, explaining why ADEC's BACT determination was "arbitrary" and contrary to ADEC's own findings. Id., at 149-150. EPA's limited but vital role in enforcing BACT is consistent with a scheme that "places primary responsibilities and authority with the States, backed by the Federal Government." S. Rep. No. 95-127, p. 29.
ADEC also points to 42 U. S. C. §7475(a)(8), a provision of the Act expressly requiring, in a limited category of cases, EPA approval of a state permitting authority's BACT determination before a facility may be constructed. See Brief for Petitioner 25; Reply Brief for Petitioner 6. Had Congress intended EPA superintendence of BACT determinations, ADEC urges, Congress would have said so expressly by mandating Agency approval of all, not merely some, BACT determinations. Brief for Petitioner 25-26. ADEC's argument overlooks the obvious difference between a statutory requirement, e.g., §7475(a)(8), and a statutory authorization. Sections 113(a)(5) and 167 sensibly do not require EPA approval of all state BACT determinations, they simply authorize EPA to act in the unusual case in which a state permitting authority has determined BACT arbitrarily. EPA recognizes that its authorization to issue a stop order may be exercised only when a state permitting authority's decision is unreasonable; in contrast, a required approval may be withheld if EPA would come to a different determination on the merits. See, e.g., 57 Fed. Reg. 28095 (1992) ("EPA acknowledges that states have the primary role in administering and enforcing the various components of the PSD program. States have been largely successful in this effort, and EPA's involvement in interpretative and enforcement issues is limited to only a small number of cases.").
Even if the Act imposes a requirement of reasoned justification for a BACT determination, ADEC ultimately argues, such a requirement may be enforced only through state administrative and judicial processes. Brief for Petitioner 34-38.15 State review of BACT decisions, according to ADEC, allows development of an adequate factual record, properly imposes the burden of persuasion on EPA when it challenges a State's BACT determination, and promotes certainty. Id., at 36-37. Unless EPA review of BACT determinations is channeled into state administrative and judicial forums, ADEC suggests, "there is nothing to prevent the EPA from invalidating a BACT determination at any time--months, even years, after a permit has been issued." Id., at 35.
It would be unusual, to say the least, for Congress to remit a federal agency enforcing federal law solely to state court. We decline to read such an uncommon regime into the Act's silence. EPA, the expert federal agency charged with enforcing the Act, has interpreted the BACT provisions and its own §§113(a)(5) and 167 enforcement powers not to require recourse to state processes before stopping a facility's construction. See supra, at 17-21. That rational interpretation, we agree, is surely permissible.16
Nor are we persuaded by ADEC's practical concerns. We see no reason to conclude that an appropriate record generally cannot be developed to allow informed federal-court review when EPA disputes a BACT decision's reasonableness. ADEC contends that, in this very case, "the State's BACT determination was reviewed by the Ninth Circuit on an incomplete record." Brief for Petitioner 37. ADEC, however, offers no particulars to back up its assertion that the Court of Appeals proceeded on an inadequate evidentiary record. We note again that the Ninth Circuit ordered EPA to submit a complete administrative record. 298 F. 3d, at 818. After the Agency declared that the record was complete, "all the parties effectively agreed that the record as it stood was adequate to resolve the issues on appeal." Ibid.
As to the burdens of production and persuasion, nothing in the Act suggests that EPA gains a proof-related tactical advantage by issuing a stop-construction order instead of seeking relief through a civil action. But cf. post, at 9 (EPA authority to issue stop-construction orders creates "the anomaly of shifting the burden of pleading and of initiating litigation from EPA to the State"). Correspondingly, nothing in our decision today invites or permits EPA to achieve an unfair advantage through its choice of litigation forum. In granting EPA a choice between initiating a civil action and exercising its stop-construction-order authority, see supra, at 7, 26, n. 15, Congress nowhere suggested that the allocation of proof burdens would differ depending upon which enforcement route EPA selected. The point ought not to be left in doubt. Accordingly, we hold that in either an EPA-initiated civil action or a challenge to an EPA stop-construction order filed in state or federal court, the production and persuasion burdens remain with EPA and the underlying question a reviewing court resolves remains the same: Whether the state agency's BACT determination was reasonable, in light of the statutory guides and the state administrative record. See supra, at 18-19, 24.17
The Ninth Circuit's review of EPA's order is in keeping with our holding that EPA may not reduce the burden it must carry by electing to invoke its stop-construction-order authority. Specifically, the Court of Appeals rested its judgment on what EPA showed from ADEC's own report: "(1) Cominco failed to meet its burden of demonstrating [to ADEC] that SCR was economically infeasible; and (2) ADEC failed to provide a reasoned justification for its elimination of SCR as a control option." 298 F. 3d, at 823. EPA's conclusions, and the basis for them, support the Court of Appeals' determination that the federal Agency's grounds for issuing the orders under review were not "arbitrar[y] and capriciou[s]." Ibid. Our own analysis, infra at 30-35, similarly hinges on the question whether ADEC's BACT determination was a reasonable one. Our analysis would have taken the same path had EPA initiated a civil action pursuant to §113(a)(5)(C), or if the suit under consideration had been filed initially in state court.
Nor do we find compelling ADEC's suggestion, reiterated by the dissent, that, if state courts are not the exclusive judicial arbiters, EPA would be free to invalidate a BACT determination "months, even years, after a permit has been issued." Brief for Petitioner 35; post, at 11-13. This case threatens no such development. It involves preconstruction orders issued by EPA, see supra, at 14, not postconstruction federal Agency directives. EPA itself regards it as "imperative" to act on a timely basis, recognizing that courts are "less likely to require new sources to accept more stringent permit conditions the farther planning and construction have progressed." App. 273 (July 15, 1988, EPA guidance memorandum). In the one instance of untimely EPA action ADEC identifies, the federal courts declined to permit enforcement to proceed. See United States v. AM General Corp., 34 F. 3d 472, 475 (CA7 1994) (affirming District Court's dismissal of an EPA-initiated enforcement action where EPA did not act until well after the facility received a PSD permit and completed plant modifications). EPA, we are confident, could not indulge in the inequitable conduct ADEC and the dissent hypothesize while the federal courts sit to review EPA's actions. Cf. Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 678-679 (1970); Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting), overruled in part by Alabama v. King & Boozer, 314 U. S. 1, 8-9 (1941)).
In sum, EPA interprets the Act to allow substantive federal Agency surveillance of state permitting authorities' BACT determinations subject to federal court review. We credit EPA's longstanding construction of the Act and confirm EPA's authority, pursuant to §§113(a)(5) and 167, to rule on the reasonableness of BACT decisions by state permitting authorities.
IV
A
We turn finally, and more particularly, to the reasons why we conclude that EPA properly exercised its statutory authority in this case. ADEC urges that, even if the Act allows the Agency to issue stop-construction orders when a state permitting authority unreasonably determines BACT, EPA acted impermissibly in this instance. See Brief for Petitioner 39-48. We note, first, EPA's threshold objection. ADEC's petition to this Court questioned whether the Act accorded EPA oversight authority with respect to a State's BACT determination. Pet. for Cert. 13-22. ADEC did not present, as a discrete issue, the question whether EPA, assuming it had authority to review the substance of a state BACT determination, nevertheless abused its authority by countermanding ADEC's permit for the Red Dog Mine expansion. See Brief for Respondents 44-45; cf. Reply Brief for Petitioner 15-16, n. 12 ("EPA asserts authority to overturn only 'arbitrary or unreasoned' state BACT determinations... . Thus, whether the State issued a reasoned justification is 'fairly included' within the question presented[.]"). Treating the case-specific issue as embraced within the sole question presented, we are satisfied that EPA did not act arbitrarily in finding that ADEC furnished no tenable accounting for its determination that Low NOx was BACT
for MG-17.
Because the Act itself does not specify a standard for judicial review in this instance,18 we apply the familiar default standard of the Administrative Procedure Act, 5 U. S. C. §706(2)(A), and ask whether the Agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Even when an agency explains its decision with "less than ideal clarity," a reviewing court will not upset the decision on that account "if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974). EPA's three skeletal orders to ADEC and Cominco surely are not composed with ideal clarity. These orders, however, are properly read together with accompanying explanatory correspondence from EPA; so read, the Agency's comments and orders adequately ground the determination that ADEC's acceptance of Low NOx for MG-17 was unreasonable given the facts ADEC found.
In the two draft permits and the final permit, ADEC formally followed the EPA-recommended top-down methodology to determine BACT, as Cominco had done in its application. App. 61, 109, 175; see supra, at 9-10. Employing that methodology in the May 1999 draft permit, ADEC first concluded that SCR was the most stringent emission-control technology that was both "technically and economically feasible." App. 65; see supra, at 9-10. That technology should have been designated BACT absent "technical considerations, or energy, environmental, or economic impacts justif[ying] a conclusion that [SCR was] not 'achievable' in [this] case." New Source Review Manual, p. B2; App. 61-62. ADEC nevertheless selected Low NOx as BACT; ADEC did so in May 1999 based on Cominco's suggestion that fitting all Red Dog Mine generators with Low NOx would reduce aggregate emissions. Id., at 87, 111-112; see supra, at 10-11.
In September and December 1999, ADEC again rejected SCR as BACT but no longer relied on Cominco's suggestion that it could reduce aggregate emissions by equipping all generators with Low NOx. See supra, at 12-14. ADEC candidly stated that it aimed "[t]o support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region." App. 208. In these second and third rounds, ADEC rested its selection of Low NOx squarely and solely on SCR's "disproportionate cost." Id., at 116; id., at 112-117, 203-208; supra, at 12-14.
EPA concluded that ADEC's switch from finding SCR economically feasible in May 1999 to finding SCR economically infeasible in September 1999 had no factual basis in the record. See App. 138. In the September and December 1999 technical analyses, ADEC acknowledged that "no judgment [could then] be made as to the impact of [SCR's] cost on the operation, profitability, and competitiveness of the Red Dog Mine." Id., at 116, 207. ADEC nevertheless concluded that SCR would threaten both the Red Dog Mine's "unique and continuing impact on the economic diversity" of northwest Alaska and the mine's "world competitiveness." Id., at 208. ADEC also stressed the mine's role as employer in an area with "historical high unemployment and limited permanent year-round job opportunities." Id., at 207.
We do not see how ADEC, having acknowledged that no determination "[could] be made as to the impact of [SCR's] cost on the operation ... and competitiveness of the [mine]," ibid., could simultaneously proffer threats to the mine's operation or competitiveness as reasons for declaring SCR economically infeasible. ADEC, indeed, forthrightly explained why it was disarmed from reaching any judgment on whether, or to what extent, implementation of SCR would adversely affect the mine's operation or profitability: Cominco had declined to provide the relevant financial data, disputing the need for such information and citing "confidentiality" concerns, id., at 134; see supra, at 13; 298 F. 3d, at 823 ("Cominco failed to meet its burden of demonstrating that SCR was economically infeasible."). No record evidence suggests that the mine, were it to use SCR for its new generator, would be obliged to cut personnel, or raise zinc prices. Absent evidence of that order, ADEC lacked cause for selecting Low NOx as BACT based on the more stringent control's impact on the mine's operation or competitiveness.
Nor has ADEC otherwise justified its choice of Low NOx. To bolster its assertion that SCR was too expensive, ADEC invoked four BACT determinations made in regard to diesel generators used for primary power production; BACT's cost, in those instances, ranged from $0 to $936 per ton of nitrogen oxide removed. App. 205-206; supra, at 14. ADEC itself, however, had previously found SCR's per-ton cost, then estimated as $2,279, to be "well within what ADEC and EPA considers economically feasible." App. 84; cf. id., at 204 (estimating SCR's per ton cost to be $2,100). No reasoned explanation for ADEC's retreat from this position appears in the final permit. See id., at 138 ("[SCR's cost falls] well within the range of costs EPA has seen permitting authorities nationwide accept as economically feasible for NOx control except where there are compelling site specific factors that indicate otherwise."). Tellingly, as to examples of low-cost BACT urged by Cominco, ADEC acknowledged: "The cited examples of engines permitted in Alaska without requiring SCR are not valid examples as they either took place over 18 months ago or were not used for similar purposes." Id., at 233-234 (footnote omitted). ADEC added that it has indeed "permitted [Alaska] projects requiring SCR." Id., at 234. Further, EPA rejected ADEC's comparison between the mine and a rural utility, see supra, at 12-13, because "no facts exist to suggest that the 'economic impact' of the incrementally higher cost of SCR on the world's largest producer of zinc concentrates would be anything like its impact on a rural, non-profit utility that must pass costs on to a small base of individual consumers." Brief for Respondents 49; App. 138-139 (similar observation in Nov. 10, 1999, EPA letter).
ADEC's basis for selecting Low NOx thus reduces to a readiness "[t]o support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region." Id., at 208. This justification, however, hardly meets ADEC's own standard of a "source-specific ... economic impac[t] which demonstrate[s] [SCR] to be inappropriate as BACT." Id., at 177. In short, as the Ninth Circuit determined, EPA validly issued stop orders because ADEC's BACT designation simply did not qualify as reasonable in light of the statutory guides.
In its briefs to this Court, ADEC nonetheless justifies its selection of Low NOx as BACT for MG-17 on the ground that lower aggregate emissions would result from Cominco's "agree[ment] to install Low NOx on all its generators." Brief for Petitioner 42, and n. 12 (emphasis added); id., at 29; Reply Brief for Petitioner 19, n. 16. We need not dwell on ADEC's attempt to resurrect Cominco's emissions-offsetting suggestion, see supra, at 10-11, adopted in the initial May 1999 draft permit, but thereafter dropped. As ADEC acknowledges, the final PSD permit did not offset MG-17's emissions against those of the mine's six existing generators, installations that were not subject to BACT. Brief for Petitioner 42, n. 12; App. 149. ADEC recognized in September and December 1999 that a State may treat emissions from several pollutant sources as falling under one "bubble"19for PSD permit purposes only if every pollutant source so aggregated is "part of the permit action." Id., at 111, 199. Offsetting new emissions against those from any of the mine's other generators, ADEC agreed, "[was] not a consideration of the BACT review provided for by the applicable law or guidelines," for those generators remained outside the permit's compass. Id., at 112, 199. ADEC plainly did not, and could not, base its December 10, 1999 permit and technical analysis on an emissions-offsetting rationale drawing in generators not subject to BACT. Id., at 111-112.20 By that time, only MG-17 was "part of the permit action." Id., at 111, 199.
B
We emphasize that today's disposition does not impede ADEC from revisiting the BACT determination in question. In letters and orders throughout the permitting process, EPA repeatedly commented that it was open to ADEC to prepare "an appropriate record" supporting its selection of Low NOx as BACT. Tr. of Oral Arg. 35; see App. 127 (attachment to Sept. 28, 1999, EPA letter to ADEC, stating "an analysis of whether requiring Cominco to install and operate [SCR] would have any adverse economic impacts upon Cominco specifically" might demonstrate SCR's economic infeasibility); id., at 150 (letter accompanying EPA's Dec. 10, 1999, finding of noncompliance and order reiterating the Agency's willingness to "review and consider any additional information or analyses provided by ADEC or Cominco" on Low NOx as BACT); App. to Pet. for Cert. 36a (EPA Dec. 10, 1999, order inviting ADEC to justify its choice of Low NOx by "document[ing] why SCR is not BACT [for MG-17]"); id., at 49a (similar statement in Feb. 8, 2000, order). At oral argument, counsel for EPA reaffirmed that, "absolutely," ADEC could reconsider the matter and, on an "appropriate record," endeavor to support Low NOx as BACT. Tr. of Oral Arg. 35.21 We see no reason not to take EPA at its word.
* * *
In sum, we conclude that EPA has supervisory authority over the reasonableness of state permitting authorities' BACT determinations and may issue a stop construction order, under §§113(a)(5) and 167, if a BACT selection is not reasonable. We further conclude that, in exercising that authority, the Agency did not act arbitrarily or capriciously in finding that ADEC's BACT decision in this instance lacked evidentiary support. EPA's orders, therefore, were neither arbitrary nor capricious. The judgment of the Court of Appeals is accordingly
Affirmed.
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ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETITIONER v.ENVIRON-
MENTAL PROTECTION AGENCY et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 21, 2004]
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Justice Kennedy, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.
The majority, in my respectful view, rests its holding on mistaken premises, for its reasoning conflicts with the express language of the Clean Air Act (CAA or Act), with sound rules of administrative law, and with principles that preserve the integrity of States in our federal system. The State of Alaska had in place procedures that were in full compliance with the governing statute and accompanying regulations promulgated by the Environmental Protection Agency (EPA). As I understand the opinion of the Court and the parties' submissions, there is no disagreement on this point. Alaska followed these procedures to determine the best available control technology (BACT). EPA, however, sought to overturn the State's decision, not by the process of judicial review, but by administrative fiat. The Court errs, in my judgment, by failing to hold that EPA, based on nothing more than its substantive disagreement with the State's discretionary judgment, exceeded its powers in setting aside Alaska's BACT determination.
I
As the majority explains, the case begins with §§113(a)(5) and 167 of the Act. 42 U. S. C. §§7413(a)(5), 7477. These provisions give EPA authority to enforce "requirements" of the CAA. The meaning of the word "requiremen[t]," though, is not defined in these provisions. Other provisions of the Act must be consulted. All parties agree that the requirement in this case is the "preconstruction requiremen[t]" that a "major emitting facility" be "subject to the best available technology [BACT] for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility." §7475(a)(4). BACT, in turn, is defined as
"an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques ... ." §7479(3).
The majority holds that, under the CAA, state agencies are vested with "initial responsibility for identifying BACT in line with the Act's definition of that term" and that EPA has a "broad oversight role" to ensure that a State's BACT determination is "reasonably moored to the Act's provisions." Ante, at 18-19. The statute, however, contemplates no such arrangement. It directs the "permitting authority"--here, the Alaska Department of Environmental Conservation (ADEC)--to "determine" what constitutes BACT. To "determine" is not simply to make an initial recommendation that can later be overturned. It is "[t]o decide or settle ... conclusively and authoritatively." American Heritage Dictionary 495 (4th ed. 2000). Cf. 5 U. S. C. §554 ("to be determined on the record after opportunity for an agency hearing").
The BACT definition presumes that the permitting authority will exercise discretion. It presumes, in addition, that the BACT decision will accord full consideration to the statutory factors and other relevant and necessary criteria. Contrary to the majority's holding, the statute does not direct the State to find as BACT the technology that results in the "maximum reduction of a pollutant achievable for [a] facility" in the abstract. Ante, at 19 (internal quotation marks omitted). Indeed, for a State to do so without regard to the other mandatory criteria would be to ignore the words of the statute. The Act requires a more comprehensive judgment. It provides that the permitting authority must "tak[e] into account" a set of contextual considerations--"energy, environmental, and economic impacts and other costs"--to identify the best control technology "on a case-by-case basis." 42 U. S. C. §7479(3). The majority reaches its narrow view of the scope of the State's discretion only by wresting two adjectives, "maximum" and "achievable," out of context. In doing so, it ignores "the cardinal rule that a statute is to be read as a whole." King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991).
To be sure, §§113(a)(5) and 167 authorize EPA to enforce requirements of the Act. These provisions, however, do not limit the States' latitude and responsibility to balance all the statutory factors in making their discretionary judgments. If a State has complied with the Act's requirements, §§113(a)(5) and 167 are not implicated and can supply no separate basis for EPA to exercise a supervisory role over a State's discretionary decision. The Court of Appeals for the Ninth Circuit had it altogether backwards when it reasoned that, "because neither Section 113(a)(5) nor Section 167 contains any exemption for requirements that involve the state's exercise of discretion," EPA had the authority to issue orders countermanding the State's BACT determination. 298 F. 3d 814, 820 (2002). The question is not whether the two sections contain any exemption. Rather, it is about the nature of the Act's requirements and whether EPA has the authority to set aside a BACT determination when no requirement of the Act was violated in the first place. In affirming the judgment of the Court of Appeals, the majority repeats the same analytical error. See ante, at 24 ("We fail to see why Congress, having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, would then implicitly preclude the Agency from verifying substantive compliance with [BACT] ..."). When the statute is read as a whole, it is clear that the CAA commits BACT determinations to the discretion of the relevant permitting authorities. Unless an objecting party, including EPA, prevails on judicial review, the determinations are conclusive.
Here the state agency, ADEC, recognized it was required to make a BACT determination. It issued two detailed reports in response to comments by interested parties and concluded that Low Nitrogen Oxide (NOx) was BACT. The requirement that the agency weigh the list of statutory factors, study all other relevant considerations, and decide the technology that can best reduce pollution within practical constraints was met in full. As even EPA acknowledged, ADEC "provid[ed] a detailed accounting of the process." App. 286. This is not a case, then, where the state agency failed to have a BACT review procedure in place or altogether refused to apply the statute's formal requirements. EPA's only quarrel is with ADEC's substantive conclusion. In disagreeing with ADEC, EPA's sole contention, in the section of its order titled "Findings of Fact," is that "SCR is BACT." App. to Pet. for Cert. 30a, 34a (emphasis added). In addition, EPA does not allege that using Low NOx would violate other CAA requirements, such as the National Ambient Air Quality Standards, Alaska's Prevention of Significant Deterioration (PSD) increments, or other applicable emission standards, see 42 U. S. C. §7475(a)(3). On this state of the record there is no deviation from any statutory "requirement." As a result, EPA has no statutory basis to invoke the enforcement authority of §§113(a)(5) and 167.
When Congress intends to give EPA general supervisory authority, it says so in clear terms. In addition to requiring EPA's advance approval of BACT determinations in some instances, 42 U. S. C. §7475(a)(8), the statute grants EPA powers to block the construction or operation of polluting sources in circumstances not at issue here, §§7426(b), (c)(1), 7410(a)(2)(D)(i). Outside the context of the CAA, Congress likewise knows how to establish federal oversight in unambiguous language. See, e.g., 42 U. S. C. §1396a(a)(13)(A) (1994 ed.) (requiring, under the Medicaid Act, reimbursement according to rates that a "State finds, and makes assurances satisfactory to the Secretary [of Health and Human Services], are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities"); Wilder v. Virginia Hospital Assn., 496 U. S. 498 (1990). No analogous language is used in the statutory definition of BACT.
EPA insists it needs oversight authority to prevent a "race to the bottom," where jurisdictions compete with each other to lower environmental standards to attract new industries and keep existing businesses within their borders. Whatever the merits of these arguments as a general matter, EPA's distrust of state agencies is inconsistent with the Act's clear mandate that States bear the primary role in controlling pollution and, here, the exclusive role in making BACT determinations. In "cho[osing] not to dictate a Federal response to balancing sometimes conflicting goals" at the expense of "[m]aximum flexibility and State discretion," H. R. Rep. No. 95-294, p. 146 (1977), Congress made the overriding judgment that States are more responsive to local conditions and can strike the right balance between preserving environmental quality and advancing competing objectives. By assigning certain functions to the States, Congress assumed they would have a stake in implementing the environmental objectives of the Act. At the same time, Congress charged EPA with setting ambient standards and enforcing emission limits, 42 U. S. C. §7475(a)(3), to ensure that the Nation takes the necessary steps to reduce air pollution.
The presumption that state agencies are not to be trusted to do their part is unwarranted in another respect: EPA itself said so. As EPA concedes, States, by and large, take their statutory responsibility seriously, and EPA sees no reason to intervene in the vast majority of cases. Brief for Respondents 30, n. 9; 57 Fed. Reg. 28095 (1992) ("States have been largely successful in ['administering and enforcing the various components of the PSD program'], and EPA's involvement in interpretative and enforcement issues is limited ..."). In light of this concession, EPA and amici not only fail to overcome the established presumption that States act in good faith, see Alden v. Maine, 527 U. S. 706, 755 (1999) ("We are unwilling to assume the States will refuse to honor ... or obey the binding laws of the United States"), but also admit that their fears about a race to the bottom bear little relation to the real-world experience under the statute. See ante, at 36 ("We see no reason not to take EPA at its word").
II
The statute contains safeguards to correct arbitrary and capricious BACT decisions when they do occur. Before EPA approves a State's PSD permit program that allows a state agency to make BACT determinations, EPA must be satisfied that the State provides "an opportunity for state judicial review." 61 Fed. Reg. 1882 (1996). Furthermore, before an individual permit may issue, the State must allow all "interested persons," including "representatives of the [EPA] Administrator," to submit comments on, among other things, "control technology requirements." 42 U. S. C. §7475(a)(2). To facilitate EPA's participation in the State's public comment process, the statute further provides that specific procedures be followed to inform the EPA Administrator of "every action" taken in the course of the permit approval process. §7475(d) ("Each State shall transmit to the Administrator a copy of each permit application relating to a major emitting facility received by such State and provide notice to the Administrator of every action related to the consideration of such permit"). Any person who participated in the comment process can pursue an administrative appeal of the State's decision, followed, as mentioned, by judicial review in state courts.
EPA followed none of the normal procedures here. Only after the period for public comments expired did it intervene and seek to overturn Alaska's decision that Low NOx was BACT. To justify its decision to opt out of the State's administrative and judicial review process and, instead, to issue a unilateral order after everyone had spoken, EPA complains that it has not before intervened in "any State administrative review proceedings in State courts" and should not now be forced to do so. Tr. of Oral Arg. 35. With scant analysis, the majority agrees. Ante, at 26 ("It would be unusual, to say the least, for Congress to remit a federal agency enforcing federal law solely to state court. We decline to read such an uncommon regime into the Act's silence"). The problem, of course, is that it is all the more unusual to allow a federal agency to take unilateral action to set aside a State's administrative decision.
Despite EPA's protestations, the statute makes explicit provision for EPA to challenge a state agency's BACT determination in state proceedings. The statute requires States to set up an administrative process for "interested persons" to submit comments. §7475(a)(2). "[I]nterested persons," Congress took care to note, include "representatives of the [EPA] Administrator." Ibid.; see also Alaska Stat. §46.14.990(20) (2002) (defining "person" to include "an agency of the United States"). Given that EPA itself requires, as a condition of approving a State's PSD program, that this process culminate in judicial review in state courts, 61 Fed. Reg., at 1882, it follows that EPA, a subset of all "interested persons," must take the same procedural steps and cannot evade the more painstaking state process by a mere stroke of the pen under the agency's letterhead.
On a more fundamental level, EPA and the majority confuse a substantive environmental statute like the CAA with a general administrative law statute like the Administrative Procedure Act (APA). EPA, the federal agency charged only with the CAA's implementation, has no roving commission to ferret out arbitrary and capricious conduct by state agencies under the state equivalent of the APA. That task is left to state courts. SeeIdaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 276 (1997) ("[T]he elaboration of administrative law ... is one of the primary responsibilities of the state judiciary").
Like federal courts, state courts are charged with reviewing agency actions to ensure that they comport with principles of rationality and due process. See, e.g., 5 U. S. C. §706(2)(A); Alaska Stat. §44.62.570(b)(3) (2002). Counsel for respondents were unable to identify, either in their briefs or at oral argument, a single State that "does not have in its law the requirement that its own agencies ... act rationally." Tr. of Oral Arg. 30. Although it remains an open question whether EPA can bypass the state judiciary and go directly into federal district court under 28 U. S. C. §1345, the availability of state judicial review defeats the Government's argument that, absent EPA's oversight, there is a legal vacuum where BACT decisions are not subject to review.
Requiring EPA to seek administrative and judicial review of a State's BACT determination, instead of allowing it to be overturned by fiat, avoids the anomaly of shifting the burden of pleading and of initiating litigation from EPA to the State. Whether the BACT decision is reviewed in state court, or in federal district court if that option is available, see supra, at 8, EPA, as petitioner, bears the initial burden and costs of filing a petition for review alleging that the State acted arbitrarily. Under the scheme endorsed by the majority today, the tables are turned. Once EPA has issued an enforcement order, and the State seeks to invalidate that order, the State bears the burden of alleging that EPA acted arbitrarily. EPA and the majority concede that, because States enjoy substantial discretion in making BACT determinations, courts reviewing EPA's order must ask not simply whether EPA acted arbitrarily but the convoluted question whether EPA acted arbitrarily in finding the State acted arbitrarily. Even under this unwieldy standard of review, and even if the burdens of persuasion and production remain with EPA, see ante, at 27-28, the initial burden of pleading and litigation now belongs to the State.
To make its decision more palatable, the majority holds that EPA still bears the burdens of production and persuasion, but there is little authority for this. The Court purports to rely on McCormick on Evidence for the proposition that " 'looking for the burden of pleading is not a foolproof guide to the allocation of burdens of proof.' " Ante, at 28, n. 17 (quoting 2 J. Strong, McCormick on Evidence §337, pp. 411-412 (5th ed. 1999)). The example--affirmative defense--discussed in that passage of the treatise, however, is far afield from the issues raised in this case. In fact, the treatise instructs that "[i]n most cases, the party who has the burden of pleading a fact will have the burdens of producing evidence and of persuading the jury of its existence as well." Id., at 411. This is because "[t]he burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion." Id., at 412. In this case, EPA changed the status quo ante by issuing an order invalidating ADEC's decision. Without upsetting accepted evidentiary principles, the majority cannot explain why EPA, as respondent in federal court--as opposed to the State, as petitioner alleging that EPA's fait accompli was arbitrary--should bear the burdens of persuasion and production, or how this unusual reallocation of burdens should work in practice.
In any event, even the majority accepts that, under its reading of the statute, the State now bears the burden of pleading. With this burden-shifting benefit alone, EPA is most unlikely to follow the procedure, prescribed by federal law, of participating in the State's administrative process and seeking judicial review in state courts. Instead, EPA can simply issue a unilateral order invalidating the State's BACT determination and put the burden on the State to challenge EPA's order. This end run around the State's process is sure to undermine it. Unless Congress was on a fool's errand, the loophole the majority finds goes only to demonstrate the inconsistency between its approach and the statutory scheme.
There is a further, and serious, flaw in the Court's ruling. Suppose, before EPA issued its orders setting aside the State's BACT determination, an Alaska state court had reviewed the matter and found no error of law or abuse of discretion in ADEC's determination. The majority's interpretation of the statute would allow EPA to intervene at this point for the first time, announce that ADEC's determination is unreasoned under the CAA, and issue its own orders nullifying the state court's ruling. This reworking of the balance between State and Federal Governments, not to mention the reallocation of authority between the Executive and Judicial Branches, shows the implausibility of the majority's reasoning.
If a federal agency were to exercise an analogous power to review the decisions of federal courts, the arrangement would violate the well-established rule that the judgments of Article III courts cannot be revised by the Executive or Legislative Branches. See Hayburn's Case, 2 Dall. 409, 410, n. (1792) (" '[B]y the Constitution, neither the Secretary [of] War, nor any other Executive officer, nor even the Legislature, are authorized to sit as a court of errors on ... judicial acts or opinions ...' "); see also Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995). The principle that judicial decisions cannot be reopened at the whim of the Executive or the Legislature is essential to preserving separation of powers and judicial independence. Judges cannot, without sacrificing the autonomy of their office, put onto the scales of justice some predictive judgment about the probability that an administrator might reverse their rulings.
The Court today denies state judicial systems the same judicial independence it has long guarded for itself--only that the injury here is worse. Under the majority's holding, decisions by state courts would be subject to being overturned, not just by any agency, but by an agency established by a different sovereign. We should be reluctant to interpret a congressional statute to deny to States the judicial independence guaranteed by their own constitutions. See Buckalew v. Holloway, 604 P. 2d 240, 245 (Alaska 1979) ("There is no doubt that judicial independence was a paramount concern of the delegates [to the Alaska Constitutional Convention]"); see also, e.g., Cal. Const., Art. III, §3 ("The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution"); see also 7 B. Witkin, Summary of California Law 159-160 (9th ed. 1988) ("[Under] the principle of separation of powers ... , one [department] cannot exercise or interfere with the functions of either of the others"). The Federal Government is free, within its vast legislative authority, to impose federal standards. For States to have a role, however, their own governing processes must be respected. New York v. United States, 505 U. S. 144 (1992). If, by some course of reasoning, state courts must live with the insult that their judgments can be revised by a federal agency, the Court should at least insist upon a clear instruction from Congress. That directive cannot be found here. Cf. Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) ("[I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute" (internal quotation marks omitted)).
There is a final deficiency in the scheme the majority finds in the statute. Nothing in the Court's analysis prevents EPA from issuing an order setting aside a BACT determination months, or even years, later. Congress cannot have intended this result. After all, when Congress provides for EPA's involvement, it directs the agency to act sooner rather than later by establishing a pre-authorization procedure. 42 U. S. C. §7475(a)(8). The majority misses the point when it faults ADEC for "overlook[ing] the obvious difference between a statutory requirement ... and a statutory authorization." Ante, at 25 (emphasis deleted). ADEC does not overlook the difference between approval before the fact and oversight after the fact. Rather, ADEC, unlike the majority, recognizes that the Act's explicit provision for a preauthorization process underscores the need for finality in state permitting decisions, making implausible an interpretation of the statute that would allow a post hoc veto procedure that upsets the same reliance and expectation interests.
The majority's initial response that "[t]his case threatens no such development [because] [i]t involves preconstruction orders issued by EPA ... , not postconstruction federal Agency directives," ante, at 29, provides no assurance that the logic of its reasoning would not in the future allow EPA's belated interventions. When the majority confronts the problem, it concludes that "EPA, we are confident, could not indulge in the inequitable conduct ADEC and the dissent hypothesize while the federal courts sit to review EPA's actions." Ibid. The authority it cites for this proposition, however, consists of nothing more than a religious exemption case that is far removed from the issues presented here and a dissent from a case that has been overruled in part. Ibid. State agencies rely on this dictum at their own risk.
The majority's reassurance to the States will likely be to no avail. "The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt." United States v. Beebe, 127 U. S. 338, 344 (1888); see also United States v. Summerlin, 310 U. S. 414, 416 (1940) ("It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights"); Utah Power & Light Co. v. United States, 243 U. S. 389, 409 (1917) ("[L]aches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest ... . A suit by the United States to enforce and maintain its policy ... stands upon a different plane in this and some other respects from the ordinary private suit ..."). Section 167, moreover, is mandatory. Once a violation of a statutory "requirement" is found, "[t]he Administrator shall ... take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part ... ." 42 U. S. C. §7477. In short, EPA's enforcement authority can--indeed, must--be exercised at any point. In light of our precedents a court would be hard pressed to hold otherwise.
The majority seeks to limit the consequence of its holding by quoting the response by respondents' counsel at oral argument that ADEC could "absolutely" arrive at the same BACT determination if only it would pile on another layer of procedure and justify its decision on an " 'appropriate record.' " Ante, at 36 (quoting Tr. of Oral Arg. 35). As the Court of Appeals recognized in a prior case, however, this option gives no solace to the States:
" The hardship is the process itself. Process costs money. If a federal licensee must spend years attempting to satisfy an elaborate, shifting array of state procedural requirements, then he must borrow a fortune to pay lawyers, economists, accountants, archaeologists, historians, engineers, recreational consultants, environmental consultants, biologists and others, with no revenue, no near-term prospect of revenue, and no certainty that there ever will be revenue. Meanwhile, politics, laws, interest rates, construction costs, and costs of alternatives change. Undue process may impose cost and uncertainty sufficient to thwart the federal determination that a power project should proceed." Sayles Hydro Associates v. Maughan, 985 F. 2d 451, 454 (CA9 1993).
If there is to be a second look, notwithstanding the 18 months ADEC spent analyzing BACT, a third or fourth look is just as permissible. The majority creates a sort of Zeno's paradox for state agencies. Because there can always be an additional procedure to ensure that the preceding process was followed, no matter how many steps States take toward the objective, they may never reach it.
This is a most regrettable result. In the proper discharge of their responsibilities to implement the CAA in different conditions and localities nationwide, the States maintain permanent staffs within special agencies. These state employees, who no doubt take pride in their own resourcefulness, expertise, and commitment to the law, are the officials directed by Congress to make case-by-case, site-specific, determinations under the Act. Regulated persons and entities should be able to consult an agency staff with certainty and confidence, giving due consideration to agency recommendations and guidance. After today's decision, however, a state agency can no longer represent itself as the real governing body. No matter how much time was spent in consultation and negotiation, a single federal administrator can in the end set all aside by a unilateral order. This is a great step backward in Congress' design to grant States a significant stake in developing and enforcing national environmental objectives.
If EPA were to announce that permit applications subject to BACT review must be submitted to it in the first instance and can be forwarded to the State only with EPA's advance approval, I should assume even the majority would find the basic structure of the BACT provisions undercut. In practical terms, however, the majority displaces state agencies, and degrades their role, in much the same way. In the case before us the applicant made elaborate submissions to ADEC. For over a year and a half, there ensued the constructive discourse that is the very object of the agency process, with both the ADEC staff and the applicant believing the State's decision would be dispositive. EPA did not participate in the administrative process, but waited until after the record was closed to intervene by issuing an order setting aside the BACT determination.
We are advised that an applicant sometimes must spend up to $500,000 on the permit process and that, for a complex project, the time for approval can take from five to seven years. Brief for National Environmental Development Association et al. as Amici Curiae 8. Under the new multiple-tiered process, permit expenditures become less justified, state officials less credible, reliance less certain. The Court should be under no illusion that its decision respects the State's administrative process.
The federal balance is remitted, in many instances, to Congress. Here the Court remits it to a single agency official. This is inconsistent with the assurance Congress gave to regulated entities when it allowed state agencies to decide upon the grant or denial of a permit under the BACT provisions of the CAA.
III
In the end EPA appears to realize the weakness of its arguments and asks us simply to defer to its expertise in light of the purported statutory ambiguity. See Brief for Respondents 41-43 (asking for deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)). To its credit, the majority holds Chevron deference inapplicable. Deference is inappropriate for all the reasons the majority recites, ante, at 21-22, plus one more: The statute is not in any way ambiguous. As a result, our inquiry should proceed no further.
Actions, however, speak louder than words, and the majority ends up giving EPA the very Chevron deference--and more--it says should be denied. The Court's opinion is chock full of Chevron-like language. Compare 467 U. S., at 843 ("whether the agency's answer is based on a permissible construction of the statute"); id., at 845 ("whether the Administrator's view ... is a reasonable one"), with ante, at 22 ("[EPA's] arguments do not persuade us to reject [them] as impermissible"); ante, at 27 (" That rational interpretation, we agree, is surely permissible"). So deficient are its statutory arguments that the majority must hide behind Chevron's vocabulary, despite its explicit holding that Chevron does not apply. In applying Chevron de factounder these circumstances, however, the majority undermines the well-established distinction our precedents draw between Chevron and less deferential forms of judicial review.
The broader implication of today's decision is more unfortunate still. The CAA is not the only statute that relies on a close and equal partnership between federal and state authorities to accomplish congressional objectives. See, e.g., New York v. United States, 527 U. S. 706 (1999). If cooperative federalism, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 289 (1981), is to achieve Congress' goal of allowing state governments to be accountable to the democratic process in implementing environmental policies, federal agencies cannot consign States to the ministerial tasks of information gathering and making initial recommendations, while reserving to themselves the authority to make final judgments under the guise of surveillance and oversight.
For these reasons, and with all respect, I dissent from the opinion and the judgment of the Court.
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3 FOOTNOTES
Footnote 1
Emissions levels for nitrogen dioxide, a regulated pollutant under the Act, are defined in terms of quantities of all oxides of nitrogen. R. Belden, Clean Air Act 47, n. 11 (2001). "The term nitrogen oxides refers to a family of compounds of nitrogen and oxygen. The principal nitrogen oxides component present in the atmosphere at any time is nitrogen dioxides. Combustion sources emit mostly nitric oxide, with some nitrogen dioxide. Upon entering the atmosphere, the nitric oxide changes rapidly, mostly to nitrogen dioxide." EPA, Prevention of Significant Deterioration for Nitrogen Oxides, 53 Fed. Reg. 40656 (1988). Nitrogen oxides are also termed "NOx."
Footnote 2
Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (DC 1972), aff'd per curiam, 4 E. R. C. 1815, 2 Env. L. Rep. 20656 (CADC 1972), aff'd by an equally divided court sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973).
Footnote 3
The PSD program also requires visibility control measures, 42 U. S. C. §§7491-7492, not at issue in this case.
Footnote 4
As enacted in 1977, §113(a)(5) extended only to solid waste combustion and sources in nonattainment areas. See Title I, §111(a), 91 Stat. 685. Congress extended §113(a)(5) in 1990 amendments to the Act to cover attainment areas, and thus to encompass enforcement of PSD permitting requirements. Title VII, 104 Stat. 2672.
Footnote 5
SCR requires injections of "ammonia or urea into the exhaust before the exhaust enters a catalyst bed made with vanadium, titanium, or platinum. The reduction reaction occurs when the flue gas passes over the catalyst bed where the NOx and ammonia combine to become nitrogen, oxygen, and water ... ." App. 71.
Footnote 6
In Low NOx, changes are made to a generator to improve fuel atomization and modify the combustion space to enhance the mixing of air and fuel. Id., at 75.
Footnote 7
Nothing in the Act or its implementing regulations mandates top-down analysis. See 42 U. S. C. §7479(3); 40 CFR §52.21(j) (2002). EPA represents that permitting authorities "commonly" use top-down methodology. Brief for Respondents 3.
Footnote 8
Two generators already were fitted with a technology called Fuel Injection Timing Retard that results in a 20% to 30% reduction in nitrogen oxide emissions. App. 75-76, 86.
Footnote 9
Rather than subject MG-1, MG-3, MG-4, and MG-5 to BACT, ADEC and Cominco "agreed to permit conditions that would require low NOx controls on MG-1, MG-3, MG-4, and MG-5, and emission limits that reflect the previous 'bubbled' limits. Under this approach, the permit would result in no increase in actual or allowable emissions from any of these engines and the installation of BACT would not be necessary for these four units." Id., at 149. EPA found no cause to question this ADEC-Cominco agreement. Ibid.
Footnote 10
At oral argument, counsel for EPA confirmed that the Agency no longer questions the Court of Appeals' adjudicatory authority, satisfied that the finality requirement was met because the stop-construction order imposed "new legal obligations on Cominco." Tr. of Oral Arg. 43-44 (punctuation omitted).
Footnote 11
Such an action would lie in district court, under 42 U. S. C. §7413(b).
Footnote 12
Formulations similar to the BACT definition's "maximum degree of [pollutant] reduction ... achievable" appear in the Act's standards for new sources in nonattainment areas, 42 U. S. C. §§7501(3) and 7503(a)(2) ("lowest achievable emission rate") (internal quotation marks omitted), and its technology-based standard for hazardous emissions, §7412(d)(2) ("maximum degree of reduction ... achievable").
Footnote 13
The dissent admonishes that "a statute is to be read as a whole." Post, at 3 (quoting King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991)). We give that unexceptional principle effect by attending both to the unequivocal grant of supervisory authority to EPA in §§113(a)(5) and 167, and to the statutory control on permitting authorities' discretion contained in the BACT definition, 42 U. S. C. §7479(3). It is, moreover, "a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U. S. 167, 174 (2001)). The Act instructs permitting authorities to identify the "best," "maximum" emission reduction technique, taking account of costs. 42 U. S. C. §7479(3). The dissent does not explain how that instruction can be construed as something other than a constraint on permitting authorities' discretion. Ultimately, the dissent recognizes the essential statutory requirement: selection of "the technology that can best reduce pollution within practical constraints." Post, at 4 (emphasis added).
Nor do we find enlightening Congress' inclusion of the word "determines" in the BACT definition. Post, at 2. Even under the dissent's view of the Act, state permitting authorities' BACT determinations are not "conclusiv[e] and authoritativ[e]." Ibid. (internal quotation marks and citation omitted). As the dissent develops at length, review of such BACT determinations may be sought in state court. Post, at 7-11; Alaska Stat. §44.62.560 (2002). And EPA actions, of course, are subject to "the process of judicial review," see post, at 1, Congress empowered federal courts to provide, here in 42 U. S. C. §7607(b)(1). See supra, at 16-17.
Footnote 14
According to the Agency, "[i]t has proven to be relatively rare that a state agency has put EPA in the position of having to exercise [its] authority," noting that only two other reported judicial decisions concern EPA orders occasioned by States' faulty BACT determinations. Brief for Respondents 30, and n. 9 (citing Allsteel, Inc. v. EPA, 25 F. 3d 312 (CA6 1994), and Solar Turbines Inc. v. Seif, 879 F. 2d 1073 (CA3 1989)). EPA's restrained and moderate use of its authority hardly supports the dissent's speculation that the federal Agency will "displac[e]" or "degrad[e]" state agencies or relegate them to the performance of "ministerial" functions. Post, at 14, 16-17. Nor has EPA ever asserted authority to override a state-court judgment. Cf. post, at 10. Preclusion principles, we note in this regard, unquestionably do apply against the United States, its agencies and officers. See, e.g., Montana v. United States, 440 U. S. 147 (1979).
Footnote 15
From the availability of state-court judicial review, the dissent concludes, it necessarily "follows that EPA ... must take the same procedural steps," of filing suit in state court, as any other person or entity seeking to challenge the issuance of a PSD permit. Post, at 8. Interpreted otherwise, the dissent asserts, the Act contains a "loophole" that allows an EPA "end run around the State's process." Post, at 10. In designing the Act, however, Congress often gave EPA a choice of enforcement measures. For example, EPA has three options to address a failure to comply with new source requirements. Compare 42 U. S. C. §7413(a)(5)(A) (EPA may "issue an order prohibiting the construction or modification of any major stationary source"), with §7413(a)(5)(B) (EPA may "issue an administrative penalty order"), and §7413(a)(5)(C) (EPA may "bring a civil action"). Other sections of the Act provide EPA with similar options. See, e.g., §§7413(a)(1)-(a)(3). Following the dissent's logic, EPA's authority to bring a civil action would rule out, as a "loophole," its authority to issue a stop-construction order.
Moreover, the existence of concurrent authority is hardly at odds with the Act. As ADEC itself concedes, EPA can issue a checking order if a PSD permit lacks a BACT determination, Brief for Petitioner 34, even if state-court jurisdiction could be invoked instead.
Footnote 16
Experience, we have already noted, see supra, at 24-25, n. 14, affords no grounding for the dissent's predictions that EPA oversight, which is undeniably subject to federal-court review, will "rewor[k] ... the balance between State and Federal Governments" and threaten state courts' independence. Post, at 10-12.
Footnote 17
"[L]ooking for the burden of pleading is not a foolproof guide to the allocation of the burdens of proof. The latter burdens do not invariably follow the pleadings." 2 J. Strong, McCormick on Evidence §337, pp. 411-412 (5th ed. 1999). No "single principle or rule ... solve[s] all cases and afford[s] a general test for ascertaining the incidence" of proof burdens. 9 J. Wigmore, Evidence §2486, p. 288 (J. Chadbourn rev. ed. 1981) (emphasis deleted). "[I]n a case of first impression," which we address today, "reference to which party has pleaded a fact is no help at all." McCormick, supra, at 412. Among other considerations, allocations of burdens of production and persuasion may depend on which party--plaintiff or defendant, petitioner or respondent--has made the "affirmative allegation" or "presumably has peculiar means of knowledge." Wigmore, supra, at 288, 290 (emphases deleted); accord, Campbell v. United States, 365 U. S. 85, 96 (1961).
Footnote 18
The Court of Appeals referred to 42 U. S. C. §7607(d)(9)(A) when it considered whether EPA's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 298 F. 3d 814, 822 (CA9 2002). Section 7607(d)(9), however, applies only to the "subsection" concerning rulemaking in which it is embedded.
Footnote 19
Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 853-859 (1984) (upholding EPA regulations allowing States to treat all pollutant-emitting devices within the same stationary source in a nonattainment area as though encased in a single "bubble").
Footnote 20
The May 4, 1999, draft permit considered whether adding Low NOx to seven generators would result in lower emissions than adding SCR to only two and choosing one of the latter as a standby unit. App. 86-87. Before December 10, 1999, however, Cominco agreed to install Low NOx controls on four of the mine's six existing generators--MG-1, MG-3, MG-4, and MG5--in order to increase use of those generators without exceeding the 1994 PSD permit's operating restriction. Id., at 149. Having agreed to use Low NOx on four generators, Cominco could propose in the December 10, 1999, permit only the addition of Low NOx to two generators--MG-2 and MG-6--to offset increases in emissions from MG-17. No facts in the record support any suggestion that addition of Low NOx to three generators, MG-2, MG-6, and MG-17, would result in lower aggregate emissions than the addition of SCR to MG-17 alone.
Footnote 21
The dissent is daunted by the hypothesis that "[b]ecause there can always be an additional procedure to ensure that the preceding process was followed," the State "may never reach" the goal of issuing a permit. Post, at 14 ("The majority creates a sort of Zeno's paradox for state agencies."). Again, the dissent can point to no instance in which EPA has indulged in any piling of process upon process. See supra, at 27, n. 16.
26.11-338 Decker v. Northwest Environmental Defense Center (03/20/2013)
OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MICHIGAN ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT*
No. 14–46. Argued March 25, 2015—Decided June 29, 2015
The Clean Air Act directs the Environmental Protection Agency to reg- ulate emissions of hazardous air pollutants from certain stationary sources (such as refineries and factories). 42 U. S. C. §7412. The Agency may regulate power plants under this program only if it con- cludes that “regulation is appropriate and necessary” after studying hazards to public health posed by power-plant emissions. §7412(n)(1)(A). Here, EPA found power-plant regulation “appropri- ate” because the plants’ emissions pose risks to public health and the environment and because controls capable of reducing these emis- sions were available. It found regulation “necessary” because the im- position of other Clean Air Act requirements did not eliminate those risks. The Agency refused to consider cost when making its decision. It estimated, however, that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year. Petitioners (including 23 States) sought review of EPA’s rule in the D. C. Circuit, which upheld the Agency’s refusal to consider costs in its decision to regulate.
Held: EPA interpreted §7412(n)(1)(A) unreasonably when it deemed cost irrelevant to the decision to regulate power plants. Pp. 5–15.
(a) Agency action is unlawful if it does not rest “ ‘on a consideration
——————
*Together with No. 14–47, Utility Air Regulatory Group v. Environ-
mental Protection Agency et al., and No. 14–49, National Mining Assn. v. Environmental Protection Agency et al., also on certiorari to the same court.
of the relevant factors.’ ” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. Even under the deferential standard of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, which directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers, id., at 842–843, EPA strayed well be- yond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants. Pp. 5–6.
(b) “Appropriate and necessary” is a capacious phrase. Read natu- rally against the backdrop of established administrative law, this phrase plainly encompasses cost. It is not rational, never mind “ap- propriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading. Section 7412(n)(1) required the EPA to con- duct three studies, including one that reflects concern about cost, see §7412(n)(1)(B); and the Agency agrees that the term “appropriate and necessary” must be interpreted in light of all three studies. Pp. 6–9.
(c) EPA’s counterarguments are unpersuasive. That other Clean Air Act provisions expressly mention cost only shows that §7412(n)(1)(A)’s broad reference to appropriateness encompasses multiple relevant factors, one of which is cost. Similarly, the modest principle of Whitman v. American Trucking Assns., Inc., 531 U. S. 457—when the Clean Air Act expressly directs EPA to regulate on the basis of a discrete factor that does not include cost, the Act should not be read as implicitly allowing consideration of cost anyway—has no bearing on this case. Furthermore, the possibility of considering cost at a later stage, when deciding how much to regulate power plants, does not establish its irrelevance at this stage. And although the Clean Air Act makes cost irrelevant to the initial decision to regu- late sources other than power plants, the whole point of having a separate provision for power plants was to treat power plants differ- ently. Pp. 9–12.
(d) EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost. Pp. 12–15.
748 F. 3d 1222, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
31. SUPREME COURT OF THE UNITED STATES
Syllabus
SACKETT ET VIR v. ENVIRONMENTAL PROTECTION AGENCY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 10–1062. Argued January 9, 2012—Decided March 21, 2012
The Clean Water Act prohibits “the discharge of any pollutant by any person,” 33 U. S. C. §1311, without a permit, into “navigable waters,” §1344. Upon determining that a violation has occurred, the Envi- ronmental Protection Agency (EPA) may either issue a compliance order or initiate a civil enforcement action. §1319(a)(3). The result- ing civil penalty may not “exceed [$37,500] per day for each viola- tion.” §1319(d). The Government contends that the amount doubles to $75,000 when the EPA prevails against a person who has been is- sued a compliance order but has failed to comply.
The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal Dis- trict Court, contending that the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of due process in viola- tion of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit af- firmed, concluding that the Clean Water Act precluded pre- enforcement judicial review of compliance orders and that such pre- clusion did not violate due process.
Held: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order. Pp. 4–10.
(a) The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. The compliance order here has all the hallmarks of APA finality. Through it, the EPA “determined” “rights or obligations,” Bennett v.
2
SACKETT v. EPA Syllabus
Spear, 520 U. S. 154, 178, requiring the Sacketts to restore their property according to an agency-approved plan and to give the EPA access. Also, “legal consequences . . . flow” from the order, ibid., which, according to the Government’s litigating position, exposes the Sacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR §326.3(e)(1)(iv). Further, the order’s issuance marks the “consumma- tion” of the agency’s decisionmaking process, Bennett, supra, at 178, for the EPA’s findings in the compliance order were not subject to further agency review. The Sacketts also had “no other adequate remedy in a court,” 5 U. S. C. §704. A civil action brought by the EPA under 33 U. S. C. §1319 ordinarily provides judicial review in such cases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA’s action. Pp. 4–6.
(b) The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1). The APA creates a “presumption favoring judicial review of administrative action.” Block v. Community Nutrition Institute, 467 U. S. 340, 349. While this presumption “may be overcome by inferences of intent drawn from the statutory scheme as a whole,” ibid., the Government’s ar- guments do not support an inference that the Clean Water Act’s stat- utory scheme precludes APA review. Pp. 7–10.
622 F. 3d 1139, reversed and remanded.
SCALIA, J., delivered the opinion for a unanimous Court. GINSBURG, J., and ALITO, J., filed concurring opinions.
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1062 _________________
CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 21, 2012]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U. S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an admin istrative compliance order under §309 of the Clean Water Act, 33 U. S. C. §1319. The order asserts that the Sack etts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the prop erty; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.
I
The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per
day for each violation.”1 §1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.
The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this en forcement regime. Today we consider only whether the dispute may be brought to court by challenging the com pliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), we upheld a regulation that construed “the navigable waters” to include “freshwa ter wetlands,” id., at 124, themselves not actually naviga ble, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001), we held that an abandoned sand and gravel pit, which “seasonally ponded” but which was not adjacent to open water, id., at 164, was not part of the navigable waters. Then most recently, in Rapanos v. United States, 547 U. S. 715 (2006), we consid ered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE ex pressed the concern that interested parties would lack
——————
1 The original statute set a penalty cap of $25,000 per violation per day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 104 Stat. 890, note following 28 U. S. C. §2461, as amended by the Debt Collection Improvement Act of 1996, §3720E, 110 Stat. 1321–373, note following 28 U. S. C. §2461, p. 1315 (Amendment), authorizes the EPA to adjust that maximum penalty for inflation. On the basis of that authority, the agency has raised the cap to $37,500. See 74 Fed. Reg. 626, 627 (2009).
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
guidance “on precisely how to read Congress’ limits on the reach of the Clean Water Act” and would be left “to feel their way on a case-by-case basis.” Id., at 758 (concurring opinion).
The Sacketts are interested parties feeling their way. They own a 2⁄3-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing perma nent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compli ance order. The order contained a number of “Findings and Conclusions,” including the following:
“1.4 [The Sacketts’ property] contains wetlands with in the meaning of 33 C. F. R. §328.4(8)(b); the wet lands meet the criteria for jurisdictional wetlands in the 1987 ‘Federal Manual for Identifying and Deline ating Jurisdictional Wetlands.’
“1.5 The Site’s wetlands are adjacent to Priest Lake within the meaning of 33 C. F. R. §328.4(8)(c). Priest Lake is a ‘navigable water’ within the meaning of sec tion 502(7) of the Act, 33 U. S. C. §1362(7), and ‘wa ters of the United States’ within the meaning of 40 C. F. R. §232.2.
“1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre. .....
“1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the ‘discharge of pollu tants’ from a point source within the meaning of sec tions 301 and 502(12) of the Act, 33 U. S. C. §§1311
and 1362(12). .....
4
SACKETT v. EPA Opinion of the Court
“1.11 [The Sacketts’] discharge of pollutants into wa ters of the United States at the Site without [a] per mit constitutes a violation of section 301 of the Act, 33 U. S. C. §1311.” App. 19–20.
On the basis of these findings and conclusions, the order directs the Sacketts, among other things, “immediately [to] undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan” and to “pro- vide and/or obtain access to the Site . . . [and] access to all records and documentation related to the conditions at the Site . . . to EPA employees and/or their designated representatives.” Id., at 21–22, ¶¶2.1, 2.7.
The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject matter jurisdiction, and the United States Court of Ap peals for the Ninth Circuit affirmed, 622 F.3d 1139 (2010). It concluded that the Act “preclude[s] pre enforcement judicial review of compliance orders,” id., at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, id., at 1147. We granted certiorari. 564 U. S. ___ (2011).
II
The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “‘determined’” “‘rights or ob ligations.’ ” Bennett v. Spear, 520 U. S. 154, 178 (1997) (quoting Port of Boston Marine Terminal Assn. v. Re- deriaktiebolaget Transatlantic, 400 U. S. 62, 71 (1970)). By reason of the order, the Sacketts have the legal obliga tion to “restore” their property according to an agency approved Restoration Work Plan, and must give the EPA access to their property and to “records and documentation related to the conditions at the Site.” App. 22, ¶2.7. Also, “‘legal consequences . . . flow’” from issuance of the order. Bennett, supra, at 178 (quoting Marine Terminal, supra, at 71). For one, according to the Government’s current litigating position, the order exposes the Sacketts to dou ble penalties in a future enforcement proceeding.2 It also severely limits the Sacketts’ ability to obtain a permitfo for their fill from the Army Corps of Engineers, see 33 U. S. C. §1344. The Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so “is clearly appropriate.” 33 CFR §326.3(e)(1)(iv) (2011).3
The issuance of the compliance order also marks the “‘consummation’” of the agency’s decisionmaking process. ——————
2 We do not decide today that the Government’s position is correct, but assume the consequences of the order to be what the Government asserts.
3 The regulation provides this consequence for “enforcement litigation that has been initiated by other Federal . . . regulatory agencies.” 33 CFR §326.3(e)(1)(iv) (2011). The Government acknowledges, however, that EPA’s issuance of a compliance order is considered by the Corps to fall within the provision. Brief for Respondents 31. Here again, we take the Government at its word without affirming that it represents a proper interpretation of the regulation.
6 SACKETT v. EPA Opinion of the Court
Bennett, supra, at 178 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 113 (1948)). As the Sacketts learned when they unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order contained were not subject to further agency review. The Government resists this conclusion, pointing to a portion of the order that invited the Sacketts to “engage in informal discussion of the terms and re quirements” of the order with the EPA and to inform the agency of “any allegations [t]herein which [they] believe[d] to be inaccurate.” App. 22–23, ¶2.11. But that confers no entitlement to further agency review. The mere possibil ity that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.
The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U. S. C. §704. In Clean Water Act enforcement cases, judicial review ordi narily comes by way of a civil action brought by the EPA under 33 U. S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possi ble route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for ac- tion already taken by another agency. The Government, to its credit, does not seriously contend that other availa ble remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute.
Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court III
Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in de termining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to] its express language.” Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984). The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.” Id., at 349. The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review.
The Government first points to 33 U. S. C. §1319(a)(3), which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter. But that argument rests on the question-begging premise that the relevant difference between a compliance order and an enforcement proceeding is that only the latter is subject to judicial review. There are eminently sound reasons other than insulation from judicial review why compliance orders are useful. The Government itself suggests that they “provid[e] a means of notifying recipients of potential vio lations and quickly resolving the issues through volun- tary compliance.” Brief for Respondents 39. It is entirely consistent with this function to allow judicial review when the recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice.
The Government also notes that compliance orders are
8 SACKETT v. EPA Opinion of the Court
not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress there fore viewed a compliance order “as a step in the delibera tive process[,] . . . rather than as a coercive sanction that itself must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanc tion. And it is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end; the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litiga tion, but that is a separate subject.
The Government further urges us to consider that Con gress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administra tive penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.
The cases on which the Government relies simply are not analogous. In Block v. Community Nutrition Institute, supra, we held that the Agricultural Marketing Agree ment Act of 1937, which expressly allowed milk handlers to obtain judicial review of milk market orders, precluded review of milk market orders in suits brought by milk
Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court
consumers. 467 U. S., at 345–348. Where a statute pro vides that particular agency action is reviewable at the instance of one party, who must first exhaust administra tive remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the admin istrative process, is strong. In United States v. Erika, Inc., 456 U. S. 201 (1982), we held that the Medicare statute, which expressly provided for judicial review of awards under Part A, precluded review of awards under Part B. Id., at 206–208. The strong parallel between the award provisions in Part A and Part B of the Medicare statute does not exist between the issuance of a compliance order and the assessment of administrative penalties under the Clean Water Act. And in United States v. Fausto, 484 U. S. 439 (1988), we held that the Civil Service Reform Act, which expressly excluded certain “nonpreference” employees from the statute’s review scheme, precluded review at the instance of those employees in a separate Claims Court action. Id., at 448–449. Here, there is no suggestion that Congress has sought to exclude compli ance-order recipients from the Act’s review scheme; quite to the contrary, the Government’s case is premised on the notion that the Act’s primary review mechanisms are open to the Sacketts.
Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficien cy of then-existing remedies for water pollution. Compli ance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of
10 SACKETT v. EPA Opinion of the Court
regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.
***
We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judg ment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 566 U. S. ____ (2012) 1 GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1062 _________________
CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 21, 2012]
JUSTICE GINSBURG, concurring.
Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediate- ly litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that ques- tion. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for an- other day and case. On that understanding, I join the Court’s opinion.
Cite as: 566 U. S. ____ (2012) 1 ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1062 _________________
CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 21, 2012]
JUSTICE ALITO, concurring.
The position taken in this case by the Federal Govern- ment—a position that the Court now squarely rejects— would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.
The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Govern- ment, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the own- ers cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the
2 SACKETT v. EPA ALITO, J., concurring
millions. In a nation that values due process, not to men- tion private property, such treatment is unthinkable.
The Court’s decision provides a modest measure of re- lief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina- tion under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of viola- tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.
Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule re- garding the reach of the Clean Water Act. When Con- gress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U. S. C. §1362(7). But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsur- prisingly, the EPA and the Army Corps of Engineers in- terpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U. S. 715, 732–739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167–174 (2001), but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictabil- ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concern- ing wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise
Cite as: 566 U. S. ____ (2012) 3 ALITO, J., concurring
Institute as Amicus Curiae 7–13.
Allowing aggrieved property owners to sue under the
Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.
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